THE  MAKING 


OF  THE 


ENGLISH   CONSTITUTION 

449-1485 


BY 

ALBERT  BEEBE  V/HITE 

PROFESSOR   OF   HISTORY    IN    THE    UNIVERSITY    OF   MINNESOTA 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  AND  LONDON 

Cbc  ftntcfcerbocher  prees 


COPYRIGHT,  1908 

BY 
ALBERT  BEEBE  WHITE 


PrinUd  in  the  United  States  of  America 


o  °F 

BARBARA  COLLEGE  LIBRARY 


VMS 


PREFACE 

A  TEXT  in  English  constitutional  history  which 
is  neither  antiquated  nor  obscure  has  long  been 
needed.  It  has  been  the  author's  ambition  to  meet 
this  need.  In  preparing  the  present  book,  he  has 
made  three  main  assumptions:  that  a  college  text 
in  history  should  be  brief,  and  designed  for  the  ac- 
companiment of  much  collateral  reading;  that  it  is 
impossible  in  the  medieval  period,  with  which  this 
volume  is  concerned,  to  combine  the  narrative 
of  English  history  and  an  account  of  the  making 
of  the  constitution;  and  that  to  follow  rigidly  either 
the  chronological  or  topical  arrangement  in  a  con- 
stitutional history  of  England  does  violence  to  the 
nature  of  the  subject.  It  has  been  taken  for  granted 
that  the  student  will  use  some  good  text  to  acquaint 
himself  thoroughly  with  the  general  history  of  a  period 
before  attempting  to  study  its  institutions;  and,  in 
the  matter  of  arrangement,  it  has  been  the  aim  to 
show  the  general  evolution  of  the  English  government 
as  a  whole,  without,  at  the  same  time,  artificially 
dividing  the  great  topics  into  reigns  or  other  time 
units.  A  constant  compromise  between  the  demands 


iv  Preface 

of  chronology  and  the  desire  for  continuity  in  the 
treatment  of  the  theme  in  hand  has  been  found 
necessary. 

The  emphasis  throughout  has  been  upon  evolution 
rather  than  upon  description.  The  purpose  has  been 
to  furnish  a  logically  satisfying  account  of  the  genesis 
of  each  institution  as  far  as  present  knowledge  permits 
— to  show  exactly  how  it  has  become  what  it  is.  This 
has  made  it  necessary  to  hold  steadfastly  to  a  given 
line  of  argument  and  to  shun  many  alluring,  and 
perhaps  profitable,  bypaths;  while,  on  the  other  hand, 
it  has  sometimes  entailed  an  apparent  interruption 
of  the  theme  in  order  to  develop  a  line  of  thought 
needed  for  logical  completeness.  More  time  has  been 
spent  upon  origins  than  upon  descriptions  of  finished 
products  or  upon  definitions,  in  the  belief  that  students 
should  obtain  much  from  detailed  and  special  works 
which  would  clog  a  general  account  of  institutional 
development. 

On  the  basis  of  his  experience  as  a  teacher,  the 
author  has  brought  out  a  college  text  upon  the  English 
constitution  which  closes  at  1485.  At  that  date, 
the  distinctively  creative  period,  the  period  when  the 
constitution  was  in  the  making,  ended.  In  studying 
this  period,  it  is  possible  and,  indeed,  essential  to 
separate  sharply  between  the  work  on  the  narrative 
and  that  on  the  institutions.  Moreover,  upon  the 
English  middle  ages,  the  scholarship  of  the  last  genera- 
tion has  been  especially  active;  but  its  work  is  at 
present  in  a  complex  and  unformulated  state,  and  the 
average  student  should  not  be  directed  immediately 
to  the  mass  of  monographs  and  detailed  works  of 
reference;  he  needs  an  intermediary  and  guide.  The 


Preface  v 

modern  period,  on  the  other  hand,  has  not  been  pri- 
marily a  period  of  creation;  in  it,  the  newly  made 
constitution  has  been  tested  and  developed,  and 
institutional  concerns  have  borne  a  very  intimate 
relation  to  the  events  and  conditions  prominent  in  a 
general  narrative;  it  lacks  the  long  sequences  of  in- 
stitutional evolution  which  characterise  the  middle 
ages.  In  studying  it,  the  narrative  and  the  consti- 
tution must  be  handled  almost  simultaneously,  and 
its  literature  is  much  better  prepared  for  the  im- 
mediate use  of  the  undergraduate.  A  text-book  deal- 
ing with  the  constitution  after  1485  should  be  a 
superfluity. 

While  it  is  the  office  of  this  book  to  present  to 
students  the  results  of  scholarship  and  serve  as  an 
introduction  to  the  writings  of  the  leading  authorities, 
the  author  is  ready  to  claim  that  its  general  conception 
and  construction  are  largely  his  own.  There  has 
been  no  attempt  to  make  an  ideal  allotment  of  space 
to  the  several  divisions  of  the  subject.  Here  the 
author  has  been  influenced  by  what  he  has  regarded 
as  desiderata  in  other  texts  and  by  the  present  state 
of  knowledge.  He  has  felt,  for  instance,  that  the 
judiciary  has  been  slighted,  while  Maitland's  work 
has  made  possible  a  treatment  of  it  which  cannot  be 
accorded  some  other  topics  which  have  traditionally 
received  more  attention.  Moreover,  classes  in  English 
constitutional  history  ought  to  contain  a  good  number 
of  prospective  lawyers.  It  seems  hardly  necessary 
to  seek  to  justify  the  copious  quotations  from  Maitland- 
If  nothing  further  were  accomplished  than  to  properly 
introduce  the  student  to  this  scholar's  writings,  the 
author  would  feel  quite  content.  In  general,  there 


vi  Preface 

has  been  more  of  quotation  than  is  customary ;  but  it  is 
believed  that  when  an  important  or  difficult  point  has 
been  stated  superlatively  well,  it  is  justifiable  to  use 
such  statement  in  a  work  of  this  sort,  especially  if  it 
originally  appeared  where  it  would  not  be  likely  to  be 
widely  read  by  undergraduates. 

The  present  volume  has  not  undertaken  the  complete 
analysis  or  exposition  of  documents  or  provided  any 
substitute  for  the  first-hand  study  of  documents  in 
class.  In  the  case  of  any  given  document,  only  its 
most  salient  feature,  as  bearing  upon  the  matter  under 
consideration,  has  been  pointed  out.  The  lists  of 
suggested  reading  are  only  designed  to  indicate  a 
moderate  amount  of  reading  that  is  scholarly,  stimu- 
lating, and  to  the  point.  Their  chief  virtue,  perhaps, 
is  their  freedom  from  the  trammels  of  traditional 
authorities.  The  bibliography,  it  is  hoped,  contains 
most  of  the  material  likely  to  be  of  real  service  to 
undergraduates.  The  author  here  takes  pleasure  in 
acknowledging  a  debt,  in  the  matter  of  bibliographical 
data,  to  Professor  Gross's  Sources  and  Literature  of 
English  History.  The  indebtedness  to  the  works  of 
Maitland,  Stubbs,  and  Medley  is  apparent  throughout, 
while,  in  particular  parts,  the  obligation  to  other  well- 
known  authorities  has  been  equally  great.  The  author 
wishes  to  make  an  especial  acknowledgment  of  what  he 
owes  Professor  George  B.  Adams.  It  was  Professor 
Adams  who  introduced  him  to  the  study  of  the  English 
constitution,  and  whose  influence  determined  him 
to  make  history  his  life-work;  and,  in  the  preparation 
of  this  book,  he  has  received  encouragement  and 
invaluable  suggestions  from  the  same  source.  The 
author  is  also  under  obligation  to  Professors  West 


Preface  vii 

and  Anderson  of  the  University  of  Minnesota  for  much 
kindly  encouragement  and  counsel. 

A.  B.  W. 

THE  UNIVERSITY  OF  MINNESOTA, 
August  12,  1908. 


CONTENTS 


PAGE 


BIBLIOGRAPHY      .......     xiii 

SUGGESTIONS  FOR  COLLATERAL  READING         .         .    xxv 

PART  I.    THE  ANGLO-SAXON  PERIOD.     449-1066 

SECTION 

I.  THE  ANGLO-SAXON  CONQUEST   AND   ITS    PRO- 
BLEMS      .......         3 

II.  THE  LOCAL  GOVERNMENT       .         .         .  .16 

1.  The  Classes  of  Men  .          .          .  .16 

2.  The  Hundred  and  Shire  and  their  Courts  .        1 7 

3.  Origin  and  Early  History  of  Boroughs  .        31 

4.  Anglo-Saxon  Feudalism    .          .          .  -37 

III.  THE  CENTRAL  GOVERNMENT  ...       50 

1.  The  King        ......       50 

2.  The  Witan 57 

IV.  THE  ANGLO-SAXON  CHURCH   ....       63 

PART  II.     THE  NORMAN   CONQUEST— ITS  MORE 
IMMEDIATE    RESULTS.     1066-1100 

I.  NORMAN  INSTITUTIONS  AND  IDEAS  AT  THE  TIME 

OF  THE  CONQUEST       .....       73 

II.  NORMAN    AND    ANGLO-SAXON    INSTITUTIONS 

COME  TOGETHER          .....        78 
I.  The  Classes  of  Men  and  the  Introduction 

of  Feudalism        .         .         .          .         -79 
i* 


x  Contents 

SECTION  PAGE 

2.  The  Local  Courts,  Communal  and  Private    .       90 

3.  The  Boroughs  .          .       .   .          .          .96 

4.  The  Central  Government — King  and  Curia 

Regis 99 

5.  Taxation.  104 

6.  The  Church.  109 

PART    III.       THE     PERIOD    OF    CONSTITUTION 
MAKING.      1100-1485 

I.  THE  MAKING  OP  THE  JUDICIARY      .         .         .     123 

1.  Origin    and    Early    Development    of    the 

Three  Central,  Common-law  Courts  and 

the  Circuit  Court  System        .          .          .124 

2.  The  Displacement  of  the  Old  Local  Courts 

by  a  New  Local  System  of  Royal  Courts     167 

3.  The  Later  Judicial  History  of   the  Curia 

Regis,   Especially  the   Origin  and  Early 
History  of  the  Court  of  Chancery         .     200 

4.  The  Common  Law  .          .          .          .220 

5.  Relations    of    the    State    Courts    and    the 

Church  Courts      .          .         .         .         .238 

II.  THE  EXECUTIVE    ......     253 

1.  The  Genesis  of  Limited  Monarchy       .         .253 

2.  The  Council 285 

III.  THE  MAKING  OF  PARLIAMENT          .         .         .     298 

1.  Origin  of  the  House  of  Lords     .          .          .298 

2.  Why  there  was  a  Middle  Class  in  England. 

Origin  of  Popular  Election  and  its  Con- 
nection with  Representation  .          .          .306 

3.  Origin  of  County  Representation  in  a  Cen- 

tral Assembly       .         .         .         .         .     317 


Contents  xi 

FAG  6 

4.  Condition  of  the  Boroughs  in  the  Thirteenth 

Century,  and  the  Origin  of  their  Repre- 
sentation in  a  Central  Assembly     .          -322 

5.  Form  and  Composition  of  Parliament  from 

1265    to   the   Middle  of  the  Fourteenth 
Century      .          .          .          .          .          .326 

6.  The  Electors,  the  Elected,  and  the  Election 

in  County  and  Borough  during  the  First 
Two  Centuries  of  Parliament          .          .341 

7.  Origin  of  the  Chief  Powers  of  Parliament. 

Control    over   Taxation;    Legislation     a 
Share  in  Administration         .          .          -354 
*,.  Parliament  in  the  Fifteenth  Century.     The 

Lancastrian  Constitution        .          .  378 

INDEX     . 403 


I 


BIBLIOGRAPHY 

ADAMS,  G.  B.  "Anglo-Saxon  Feudalism."  American  His- 
torical Review  vii.,  11—35.  New  York,  1901. 

Emphasises  the  fact  that  all  the  fundamental  ideas  of  institutional  feu- 
dalism were  brought  to  England  from  the  continent  through  the  Norman 
Conquest. 

"The  Critical  Period  of  English  Constitutional  History. " 

American  Historical  Review  v.,  643-658.     New  York,  1900. 

A  valuable  discussion  of  the  fundamental  principles  of  Magna  Carta. 

"The  Origin   of  the  English  Constitution,"  I.  and  II. 

American  Historical  Review,  xiii.,  229-245;  713-730.     New  York, 
1908. 

The  author  finds  the  germ  of  constitutional  monarchy  in  the  contract 
element  in  feudalism. 

and   STEPHENS,    H.    M.      Select   Documents   of  English 

Constitutional  History.     New  York,  1901.     Reprinted,  1902,  1904, 
1906. 

The  best  collection  of  translated  documents  for  the  study  of  the  consti- 
tution. 

ANDREWS,  C.  M.     The  Old  English  Manor.     Baltimore,  1892. 
A  useful  account  of  the  life  and  internal  relations  of  the  manor. 

ANSON,  W.  R.  The  Law  and  Custom  of  the  Constitution.  Ox- 
ford, 1886.  2nd  edition,  1892.  Vol.  ii.,  pt.  i.,  3rd  edition,  1907. 

The  book  aims  "to  state  the  law  relating  to  existing  institutions,  with 
so  much  of  history  as  is  necessary  to  explain  how  they  have  come  to  be  what 
they  are."  The  historical  explanations  briefly  connecting  the  past  with  the 
present,  are  very  enlightening  to  the  student. 

ASHLEY,  W.  J.  An  Introduction  to  English  Economic  History 
and  Theory.  2  vols.  London,  1888-1893.  3rd  edition  of  vol.  i., 
1894. 

Vol.  i.  is  very  useful  to  the  student  of  history;  ch.  i.  contains  an  excellent 
account  of  the  manor. 

— — —     Surveys,  Historic  and  Economic.     London,  1900. 

Contains  valuable  reviews  and  summaries  of  important  books  and  articles 
on  medieval  agrarian  and  urban  history. 


xiv  Bibliography 

BAILDON,  W.  P.  (editor).  "Select  Cases  in  Chancery."  Pub- 
lications  of  the  Selden  Society  x.  Introduction,  pp.  xi.-xlv.  Lon- 
don, 1896. 

BALDWIN,  J.  F.  "Beginnings  of  the  King's  Council."  Trans- 
actions of  the  Royal  Historical  Society,  vol.  xix.  London,  1905. 
"Early  Records  of  the  King's  Council."  American  Historical 
Review  xi.,  1-15.  New  York,  1905.  "Antiquities  of  the  King's 
Council."  English  Historical  Review  xxi.,  1-20.  London,  1906. 
"The  Privy  Council  of  the  Time  of  Richard  II."  American  His- 
torical Review  xii.,  1-14.  New  York,  1906.  "The  King's  Council 
from  Edward  I.  to  Edward  III.  "  English  Historical  Review  xxiii., 
1-14.  London,  1908. 

These  studies  are  excellently  supplementing  Dicey's  brief  work. 

The  Scutage  and  Knight  Service  in  England.     Chicago, 

1897. 

BATESON,  MARY  (editor).  "Borough  Customs."  Publications 
of  the  Selden  Society,  xxi.  Introduction,  pp.  xv.-clix.  London, 
1906. 

"The  chief  purpose  of  this  Introduction  must  be  to  explain  how  the 
borough  customs  differed  from  the  law  of  the  land,  why  they  differed,  and 
in  what  way  they  were  brought  ultimately  into  such  harmony  that  borough 
custom  has  ceased  to  be  a  matter  of  much  practical  interest." 

BEARD,  C.  A.  The  Office  of  Justice  of  the  Peace  in  England,  in 
its  Origin  and  Development.  New  York,  1904. 

B^MONT,  C.  Chartes  des  Libertes  Anglaises  (1100-1305),  pub- 
liees  avec  une  Introduction  et  des  Notes. 

The  most  useful  text  of  Magna  Carta  and  its  early  confirmations.  The 
Introduction  and  biographical  notes  are  of  much  value. 

BIGELOW,  M.  M.  History  of  Procedure  in  England  (1066—1204). 
London,  1880. 

BOHMER,  H.  Kirche  und  Stoat  in  England  und  in  der  Norntandie 
im  XI.  und  XII.  Jahrhundert.  Leipzig,  1899. 

The  best  account  of  the  constitutional  effects  of  the  Conquest  upon  the 
church,  and  a  valuable  introduction  to  the  relations  of  church  and  state  until 
the  Reformation. 

BRUNNER,  H.     Die  Entstehung  der  Schwurgerichte.     Berlin,  1871. 
This  work  proved  that  the  jury  was  of  continental  origin. 

CHADWICK,  H.  M.  Studies  on  Anglo-Saxon  Institutions.  Cam- 
bridge, 1905. 

The  Origin  of  the  English  Nation .     Cambridge ,  1 90  7 . 

This  and  the  preceding  throw  new  light  upon  several  Anglo-Saxon  in- 
ititutions,  especially  upon  the  origin  of  kingship. 


Bibliography  xv 

CHBVNEY,  E.  P.  "The  Disappearance  of  English  Serfdom." 
English  Historical  Review  xv.,  20-37.  London,  1900. 

DICEY,  A.  V.  The  Privy  Council.  Oxford,  1860.  Reprinted, 
London,  1887. 

An  excellent  brief  work.    There  is  no  detailed  history  of  the  Privy  Council. 

DOWELL,  STEPHEN.  A  History  of  Taxation  and  Taxes  in  Eng- 
land. 4  vols.  London,  1884.  and  edition,  1888. 

The  best  work  on  taxation,  but  not  entirely  satisfactory  for  the  middle 
ages. 

Essays  in  Anglo-Saxon  Law.  Boston,  1876.  "  Courts  of  Law." 
By  HENRY  ADAMS.  "  Land  Law."  By  H.  C.  LODGE.  "  Family 
Law."  By  E.  YOUNG.  "  Legal  Procedure."  By  J.  L.  LAUGHLIN. 

FORTESCUE,  SIR  JOHN.  Governance  of  England.  Edited  by 
Charles  Plummer.  Oxford,  1885. 

FREEMAN,  E.  A.  History  of  the  Norman  Conquest.  6  vols. 
Oxford,  1867-1879.  and  edition  of  vols.  i.-iv.,  1870-1876.  3rd 
edition  of  vols.  i.,  ii.,  1877. 

The  principal  work  upon  the  subject.  With  a  long  introduction  upon 
the  Anglo-Saxon  period,  it  covers  to  the  end  of  Stephen's  reign  and  concludes 
with  a  supplementary  sketch  to  1272.  Freeman's  generalisations  must  be 
accepted  with  great  caution.  Many  of  them  have  been  corrected  through 
the  work  of  Round  and  other  recent  writers. 

FUSTEL  DE  COULANGES,  N.  D.  The  Origin  of  Property  in  Land. 
(Translated  by  Margaret  Ashley.)  London,  1891.  2nd  edition, 
1892. 

The  author  contends  that  primitive  ownership  of  land  was  individualistic 
and  aristocratic.  There  is  a  valuable  Introduction  by  W.  J.  Ashley. 

GARDINER,  S.  R.  A  School  Atlas  of  English  History.  London, 
1891. 

Though  supplemented  in  some  respects  by  Reich's  more  recent  work, 
this  remains  the  most  useful  atlas  of  English  history  for  students. 

GEE,  H.,  and  HARDY,  W.  J.  Documents  Illustrative  of  English 
Church  History.  London,  1896. 

The  documents  selected  cover  from  the  earliest  times  to  the  end  of  the 
1 7th  century  and  are  translated  and  edited  in  a  very  scholarly  manner. 

GNEIST,  R.  Englische  Verfassungsgeschichte.  Berlin,  1882. 
Translated  by  P.  A.  Ash  worth:  The  History  of  the  English  Constitu- 
tion, a  vols.  London,  1886.  and  edition,  1889.  A  one- volume 
edition,  1891. 

The  best  of  the  constitutional  histories  of  England  by  foreigners  and  on* 
of  the  standard  general  works  upon  the  subject. 


xvi  Bibliography 

GREEN,  J.  R.  History  of  the  English  People.  4  vols.  London, 
1877-1880.  Reprinted,  8  vols.,  1895-1896. 

"The  most  important  general  history  of  England,  devoting  much  atten- 
tion to  the  social  condition  of  the  people." — GROSS. 

The  Conquest  of  England  (829-1071).     London,    1883. 

Reprinted,  2  vols.,  1899. 

The  most  valuable  study  of  the  Danish  invasions  and  conquest. 

The    Making    of   England    (449-829).      London,    1881, 

Reprinted,  2  vols.,  1897. 

Makes  valuable  use  of  the  topographical  features  of  ancient  England  in 
studying  the  invasions  and  settlements  of  the  Anglo-Saxons. 

GREEN,  MRS.  J.  R.  Town  Life  in  the  Fifteenth  Century.  2  vols. 
London,  1894. 

Covers  the  period  from  the  Norman  Conquest  to  the  end  of  the  middle 
ages. 

GROSS,  CHARLES  (editor).  "Select  Cases  from  the  Coroners' 
Rolls. "  Publications  of  the  Selden  Society  ix.  Introduction, 
pp.  xiii.-xliv.  London,  1896. 

The  Introduction  contains  the  best  account  of  the  origin  of  the  coroner 
and  throws  light  upon  the  early  history  of  the  jury. 

The  Gild  Merchant:  A  Contribution  to  British  Municipal 

History.     2  vols.     Oxford,  1890. 

The  best  work  on  the  subject. 

The  Sources  and  Literature  of  English  History  from  the 

Earliest  Times  to  about  1485.     London,  1900. 

The  first  important  bibliography  of  English  history,  and  a  work  of  great 
completeness  and  authority  for  the  period  it  covers.  Indispensable  to  the 
student  of  English  history. 

HASKINS,  C.  H.  "Knight  Service  in  Normandy  in  the  Eleventh 
Century. "  English  Historical  Review  xxii.,  636-649.  London, 
1907. 

HOLMES,  O.  W.  The  Common  Law.  Boston,  1881.  London, 
1882. 

HUNT,  WILLIAM,  and  POOLE,  R.  L.  (editors).  The  Political 
History  of  England.  12  vols.  London,  1905-1908.  i..  From 
Earliest  Times  to  1066.  By  THOMAS  HODGKIN.  ii.,  1066-1216. 
By  G.  B.  ADAMS,  iii.,  1216-1377.  By  T.  F.  TOUT,  iv.,  1377-1485. 
By  C.  OMAN,  v.,  1485-1547.  By  H.  A.  L.  FISHER,  vi.,  1547-1603. 
By  A.  F.  POLLARD,  vii.,  1603-1660.  By  F.  C.  MONTAGUE,  viii., 


Bibliography  xvii 

1660-1702.  By  RICHARD  LODGE,  ix.,  1702-1760.  By  I.  S. 
LEADAM.  x.,  1760-1801.  By  WILLIAM  HUNT,  xi.,  1801-1837. 
By  J.  C.  BRODRICK  and  J.  K.  FOTHERINGHAM.  xii.,  1837-1901. 
By  S.  J.  Low  and  L.  C.  SANDARS. 

A  detailed  work  of  collaboration,  containing  the  results  of  recent  scholar* 
ship. 

JENKS,  EDWARD.     Edward  Plantaganet  (Edward  /.),  the  English 
Justinian  or  the  Maker  of  the  Common  Law.     London,  1902. 
Contains  a  valuable  discussion  of  Edward's  legislation. 

——    Law  and  Politics  in  the  Middle  Ages.     London,  1898. 

A  brilliant  and  concise  discussion  of  the  origin  of  various  governmental 
institutions  and  principles. 

"The  Myth  of  MagnaCarta."     The  Independent  Review 

iv.,  260-273. 

Contends  somewhat  violently  for  the  aristocratic  nature  of  the  movement 
resulting  in  Magna  Carta  and  the  constitutional  futility  of  the  document  itself. 

KERLEY,  D.  M.  An  Historical  Sketch  of  the  Equitable  Jurisdiction 
of  the  Court  of  Chancery.  Cambridge,  1890. 

LAPPENBERG,  J.  M.,  and  PAULI,  R.  Geschichte  von  England  (to 
*5°P)«  5  vo\s.  Hamburg,  1834-1858. 

Vols.  iii.-v.  still  remain  the  most  valuable  detailed  account  of  large  por- 
tions of  the  period  from  1154  to  1509. 

LARSON,  L.  M.  The  King's  Household  in  England  before  the 
Norman  Conquest.  Madison,  1904. 

LEA,  H.  C.  Superstition  and  Force:  Essays  on  the  Wager  of  Law, 
the  Wager  of  Battle,  the  Ordeal,  and  the  Torture.  Philadelphia, 
1886.  4th  edition,  1892. 

The  best  account  of  the  kinds  of  trial  which  antedated  the  jury. 

LEADAM,  I.  S.  (editor).  "Select  Cases  in  the  Star  Chamber, 
1477—1509."  Publications  of  the  Selden  Society  xvi.  Introduc- 
tion, pp.  ix.-cliv.  London,  1903. 

Part  i.  of  the  Introduction  contains  an  exhaustive  discussion  of  the  pro- 
cedure, composition,  and  jurisdiction  of  the  Court  of  Star  Chamber  for  the 
period  under  consideration. 

— — —  "The  Security  of  Copyholders  in  the  Fifteenth  and 
Sixteenth  Centuries."  English  Historical  Review  viii.,  684-696. 
London,  1893. 


xviii  Bibliography 

McKECHNiE,  W.  S.  Magna  Carta:  a  Commentary  on  the  Great 
Charter  of  King  John,  with  an  Historical  Introduction.  Glasgow, 

i9°5- 

The  best  commentary  upon  the  individual  articles  of  the  Charter.     Tha 
introduction  is  valuable. 

MAITLAND,  F.  W.  Domesday  Book  and  Beyond:  Three  Essays 
in  the  Early  History  of  England.  Cambridge,  1897.  Reprinted, 
1907. 

The  most  brilliant  recent  work  on  Anglo-Saxon  institutions. 

English  Law  and  the  Renaissance.     Cambridge,  1901. 

An   illuminating    discussion    of   the  distinguishing   characteristics   and 
constitutional  importance  of  the  common  law. 

Justice  and  Police.     London,  1885. 

This  brief  work  shows  admirably  the  historical  relation  between  the 
present  theory  and  practice  in  justice  and  police  and  the  medieval. 

(editor).     Pleas  of  the  Crown  for  the  County  of  Gloucester. 

Introduction,  pp.   vii.-l.     London,    1884. 

The  Introduction  contains  an  excellent  account  of  the  procedure  in  the 
itinerant  justice  court  in  *.he  early  thirteenth  century. 


(editor).     "  Records  of  the  Parliament  at  Westminster. 

in  1305."     [Half-title:  Memoranda  de  Parliamento.]     Rolls  Series 
Introduction,   pp.    ix.-cxxi.     London,    1893. 

The  Introduction  contains  valuable  comment  upon  the  primitive  Parlia- 
ment and  Council. 


Roman  Canon  Law  in  the  Church  of  England.     London, 

1898. 

Consists  of  six  essays  reprinted  from  the  English  Historical  Review,  and 
the  Law  Quarterly  Review.  Essay  iv.  contains  the  best  discussion  of  the 
matters  at  stake  between  Henry  II.  and  Becket. 


(editor).     "Select  Pleas  in  Manorial  and  other  Seignorial 

Courts.  "     Publications  of  the  Selden   Society  ii.     Introduction,  pp. 
xi.-lxxvii.     London,  1889. 

The  Introduction  gives  the  best  account  of  private  jurisdictions  in  the 
thirteenth  century  and  of  the  origin  of  the  sheriff's  tourn. 

•  (editor).     "Select  Pleas  of  the  Crown."     Publications  of 
the  Selden  Society  i.     Introduction,  pp.  vii.-xxviii.     London,  1888. 

In  the  Introduction  is  an   important  discussion  of  the  origin  and  early 
history  of  the  Courts  of  King's  Bench  and  Common  Pleas. 

The  Constitutional  History  of  England.     London,  1908. 

A  course  of  lectures  delivered  at  the  University  of  Cambridge. 


Bibliography  xix 

MAITLAND,  F.  W.     "The  History  of  a  Cambridgeshire  Manor." 
English  Historical  Review  ix.,  417-439.     London,  1894. 

Traces  the  history  of  an  individual  manor  from  the  thirteenth  to  the 
fifteenth  century. 

"The    Origin   of    the    Borough."      English    Historical 

Review  xi.,  13-19.     London,  1896. 

The  author  emphasises  the  importance,  in  municipal  beginnings,  of  the 
group  of  midland  boroughs  having  a  military  origin;  he  finds  in  the  burk-ptace 
the  germ  of  the  borough  court  and,  through  it,  of  the  borough  government 
as  a  whole.  See  also  pp.  172-219  in  his  Domesday  Book  and  Beyond.  For  a 
criticism  of  Maitland's  theory,  see  James  Tait  in  English  Historical  Review 
xii.,  77a-777. 


"The  Suitors  of  the  County  Court. "     English  Historical 

Review  Hi.,  417-421.     London,  1888. 

He  argues  that  the  duty  of  attending  the  shire  court  had  become  terri- 
torialised,  only  those  freemen  attending  whose  holdings  owed  suit  of  court. 


Township  and  Borough.     Cambridge,   1898. 


Deals  primarily  with  the  change  of  a  rural  community  into  an  urban 
community,  showing  the  persistence  of  many  rural  features  and  their  later 
influence. 

MAKOWER,    F.     Verfassung   der   Kirche   von   England.     Berlin, 
1894.      Translation:   The  Constitutional  History  and  Constitution 
of  the  Church  of  England.     London,  1895. 
The  best  general  work  on  the  subject. 

MEDLEY,  D.  J.     A  Student's  Manual  of  English  Constitutional 
History.     Oxford,  1894.     4th  edition,  1908. 

A  condensed  but  comprehensive  presentation  in  topical  form,  based  upon 
the  best  authorities. 

NORGATE,  KATE.     England  under  the  Angevin  Kings.     2  vols. 
London,  1887. 

One  of  the  best  narratives  of  the  last  half  of  the  twelfth  century. 


John  Lackland.     London,  1902. 


A  continuation  of  the  author's  England  under  the  Angevin  Kings,  but  a 
work  of  greater  scientific  value. 

OMAN,  C.  W.  C.  (editor).  A  History  of  England.  (From  the 
earliest  times  down  to  the  year  1815.)  London,  1904,  etc.  i., 
From  the  Beginning  to  1066.  By  C.  W.  C.  OMAN,  ii.,  1066-1272. 
By  H.  W.  C.  DAVIS,  iii.,  1272-1485.  By  OWEN  EDWARDS. 
iv.,  1485-1603.  By  A.  D.  INNES.  v.,  1603-1714.  By  G.  M. 
TREVELYAN.  vi.,  1714-1815.  By  C.  G.  ROBERTSON. 


xx  Bibliography 

PAGE,  T.  W.  The  End  of  Villainage  in  England.  New  York, 
1900. 

PEARSON,  C.  H.  Historical  Maps  of  England  during  tha  First, 
Thirteen  Centuries.  London,  1869.  and  edition,  1870. 

The  maps  are:  Brittania  Romana,  Brittania  Cambrica,  Saxon  England, 
Norman  England.  Monastic  England.  They  bear  the  stamp  of  their  author's 
originality  and  are  accompanied  by  a  valuable  text. 

PIKE,  L.  O.  A  Constitutional  History  of  the  House  of  Lords. 
London, 1894. 

A  work  of  very  great  value;  throws  light  upon  related  institutions  and 
constitutes  a  history  of  the  English  nobility. 

A    History   of   Crime   in   England.      2    vols.      London, 

1873-1876. 

POLLOCK,  FREDERICK.  The  Land  Laws.  London,  1883.  3rd 
edition,  1896. 

Especially  useful  in  explaining  the  changes  subsequent  to  Edward  I.'s 
time. 

and  MAITLAND,  F.  W.     The  History  of  English  Law  before 

the  Time  of  Edward  I.     2  vols.     Cambridge,  1895.     2nd  edition, 
1898. 

Has  superseded  all  previous  works  on  English  law  for  the  period  which 
it  covers,  and,  in  its  lavish  comprehensiveness,  goes  far  to  supplement  and 
correct  the  older  constitutional  histories. 

POOLE,  R.  L.  (editor).  Historical  Atlas  of  Modern  Europe, 
from  the  Decline  of  the  Roman  Empire.  Oxford,  1902. 

The  best  historical  atlas.  Ic  contains  about  one  hundred  maps  with 
explanatory  text.  Of  these,  seventeen  relate  to  the  British  Isles. 

RAMSAY,  J.  H.  Lancaster  and  York  (1390-1485).  2  vols. 
Oxford,  1892. 

The  most  detailed  narrative  of  the  fifteenth  century. 

The  Angevin  Empire,  or  the  three  Reigns  of  Henry  II., 

Richard  I.,  and  John   (1154-1216).     London,   1903. 

The   Foundations   of  England,   or    Twelve    Centuries   of 

British  History  (B.  C.  55~A.  D.  1154).     a  vols.     London,  1898. 

This,  with  the  preceding,  constitutes  the  best  general  narrative  of  English 
history  to  iai6. 

REEVES,  JOHN.  A  History  of  the  English  Law  (to  1509).  a 
vols.  London,  1784.  2nd  edition  (to  1558),  4  vols.,  1787.  3rd 
edition,  1814.  Vol.  v.,  Reign  of  Elizabeth,  1829.  New  edition 
in  3  vols.,  by  W.  F.  FINLASON,  1869. 

For  the  period  before  Edward  I.,  this  has  been  superseded  by  the  work 
of  Pollock  and  Maitland. 


Bibliography  xxi 

REICH,  EMIL.     A  New  Student's  Atlas  of  English  History.     Lon- 
don, 1903. 

RIESS,  L.     "  Der  Ursprung  des  englischen  Unterhauses.  "     His- 
torische  Zeitschrift  xxiv.  (neue  Folge),  1-33.     Munich,  1888. 

Riess  believes  that  the  early  representatives  to  Parliament  were  sum- 
moned primarily  to  inform  the  king  of  the  condition  of  the  local  administration. 

Geschichte  des  Wahlrechts  zum  englischen  Parlamenl  im 

Mittelalter.     Leipsic,  1885. 

A  brilliant  monograph.  For  a  review  of  this  and  the  same  author's  Der 
Ursprung  des  englischen  Unterhauses,  see  English  Historical  Review  v.,  146-1 56. 

ROUND,  J.  H.     Feudal  England:  Historical  Studies  of  the  nth 
and  1 2th  Centuries.     London,  1895. 

Especially  valuable  for  the  essay  on  the  introduction  of  knight  service, 
upon  which  subject  and  the  early  effects  of  the  Conquest  in  general  Round 
is  the  leading  authority. 

^^—     Geoffrey  de  Mandeville:  A  Study  of  the  Anarchy.    London, 
1892. 

The  life  of  Geoffrey  is  presented  as  "the  most  perfect  and  typical  pre- 
sentment of  the  feudal  and  anarchic  spirit  that  stamps  the  reign  of  Stephen." 
For  a  somewhat  different  estimate  of  the  degree  of  anarchy  prevailing,  see  H. 
W.  C.  Davis  in  English  Historical  Review  xviii.,  630-641.  Various  matters 
of  constitutional  interest  are  dealt  with. 

The   Commune  of  London   and  Other  Studies.      West- 


minster, 1899. 

These  studies  are  mainly  on  the  twelfth  century.  In  English  Historical 
Review  xix.,  702-706,  G.  B.  Adams  contends  that  London  was  a  commune  in 
the  technical,  continental  sense  during  a  part  of  the  reigns  of  Richard  I.  and 
John. 

SEEBOHM,  FREDERICK.  The  English  Village  Community:  An 
Essay  on  Economic  History.  London,  1883.  4th  edition,  1890. 
Reprinted,  1896  and  1905. 

A  work  which  contained  much  new  information  upon  classes  and  tenures 
in  the  primitive  settlements  and  precipitated  a  long  contest  over  the  question 
of  the  freedom  or  servility  of  these  settlements.  In  his  later  writing,  Seebohm 
has  modified  his  theory  of  the  Roman  origin  of  the  English  village  community 
while  holding  to  its  essentially  servile  character. 

— —     Tribal  Customs  in  Anglo-Saxon  Law.     London,  1902. 

Starting  with  the  conclusions  reached  in  his  Tribal  System  in  Wales, 
London,  1895,  and  edition,  1904,  the  author  shows  that  tribal  custom  was  one 
important  element  in  shaping  Anglo-Saxon  institutions. 

SHIRLEY,  W.  W.  (editor).  "Royal  and  other  Historical  Letters 
Illustrative  of  the  Reign  of  Henry  III. "  Rolls  Series.  2  vols. 
Preface  (to  Vol.  ii.),  pp.  vii.-xxvi.  London,  1862-1866. 

This  preface  contains  a  good  brief  account  of  the  beginning  of  represen- 
tation in  Parliament. 


xxii  Bibliography 

STEPHEN,  J.   F.     A   History  of  the  Criminal  Law  of  England. 
3  vols.     London,  1883. 

This  and  Pike's  A  History  of  Crime  in  England  are  the  most  detailed 
works  on  the  subject. 

STUBBS,  WILLIAM.     Historical  Introductions  to  the  Rolls  Series. 
Edited  by  A.  Hassall.     London,  1902. 

This  publication  in  one  volume  of  the  "historical  portions  of  the  late 
Bishop  Stubbs's  Introductions  to  certain  volumes  of  the  Rolls  Series"  contains 
invaluable  material  upon  the  reigns  of  Henry  II.,  Richard  I..  John.  Edward 
I.,  and  Edward  II.  "No  better  judge  of  the  value  of  Henry  II. 's  work  ever 
lived ;  no  historian  has  ever  given  us  a  truer  and  more  forcible  picture  of  King 
John." 

Lectures  on  Early   English    History.        Edited  by    A. 

Hassall.     London,  1906. 


Select   Charters  and  other  Illustrations  of  English  Con- 
stitutional History  front  the  Earliest  Times  to  the  Reign  of  Edward 
the  First.     Oxford,   1870.     8th  edition,   1895. 

The  best  collection  of  constitutional  documents  for  the  use  of  students. 
The  Latin  documents  are  not  translated. 

The  Constitutional  History  of  England  in  its  Origin  and 

Development.     3  vols.     Oxford,  1874-1883.     6th  edition  of  vol.  i., 
1897;  4th  edition  of  vol.  ii.,  1896;  5th  edition  of  vol.  Hi.,  1895. 

The  best  constitutional  history  of  England.  It  covers  only  to  1485.  The 
work  of  Gneist  has  long  stood  near  that  of  Stubbs  both  in  scope  and  authority. 
As  a  foreigner,  Gneist  was  impressed  with  the  local  origin  of  much  in  England's 
administrative  system  and  the  importance  of  the  gentry,  especially  in  the 
local  government;  these  aspects  of  the  constitution  are  emphasised  in  his 
books.  During  the  last  generation,  the  work  of  Stubbs  and  Gneist  has  been 
supplemented  by  a  great  deal  of  valuable  monographic  writing,  and  Pollock 
and  Maitland's  great  treatise  on  the  history  of  English  law  touches  many 
phases  of  constitutional  history. 

The  Early  Plantagenets    (1135-1327).      London,   1876. 

5th  edition,  1886. 

An  excellent  short  narrative  of  the  period,  containing  much  of  value  to 
the  student  of  the  constitution. 

TASWELL-LANGMEAD,    T.     P.     English    Constitutional    History. 
London,  1875.     6th  edition,  by  P.  A.  Ashworth,  1905. 
Especially  valuable  after  the  thirteenth  century. 

THAYER,  J.  B.  A  Preliminary  Treatise  on  Evidence  at  the  Com- 
mon Law.  Part  i.,  "Development  of  Trial  by  Jury."  Boston, 
1896.  Reprinted  with  part  ii.,  1898. 

The  best  general  work  on  the  jury;  especially  valuable  for  the  institution'* 
i-.er  history. 


Bibliography  xxiii 

TRAILL,  H.  D.  (editor).  Social  England:  A  Record  of  the  Progress 
of  the  People  in  Religion,  Laws,  Learning,  Arts,  Industry,  Commerce, 
Science,  Literature,  and  Manners,  from  the  Earliest  Times  to  the 
Present  Day.  By  various  writers.  6  vols.  London,  1894—1897. 
Vol.  i.,  and  edition,  1894.  A  new  edition  (illustrated),  TRAILL,  H. 
D.,  and  MANN,  J.  S.  (editors),  1901-1904. 

Maitland's  contributions  to  the  first  two  volumes  are  of  especial  valuo 
to  the  student  of  the  English  constitution. 

VINOGRADOFF,  P.  "Folkland. "  English  Historical  Review  viii., 
1—17.  London,  1893. 

This  article  established  the  nature  and  significance  of  the  long  misunder- 
stood folkland. 

•   •     The  Growth  of  the  Manor.     London,   1905. 

Argues  for  the  communal  organisation  of  the  primitive  English  town* 
ship  and  its  late  manorialisation. 

— — —  Villainage  in  England:  Essays  in  English  Medieval 
History. 

These  essays  deal  mainly  with  the  twelfth  and  thirteenth  centuries,  and 
constitute  the  best  work  on  the  medieval  peasantry  before  the  forces  leading 
to  the  end  of  serfdom  became  dominant. 

ZINKEISEN,  FRANK.  "The  Anglo-Saxon  Courts  of  Law."  Po- 
litical Science  Quarterly  x.,  132-144.  Boston,  1895. 

A  good  brief  correction  of  some  of  the  older  misconceptions. 


ABBREVIATIONS 

ADAMS,  G.   B.,  and   STEPHENS,   H.   M.      Select   Documents  of 
English  Constitutional  History,  referred  to  as  A.  and  S. 

POLLOCK,  P.,  and  MAITLAND,   F.   W.      The  History  of  English 
Law  before  the  Time  of  Edward  I.,  referred  as  to  P.  and  M. 


SUGGESTIONS    FOR    COLLATERAL    READING 
PART  I.    THE  ANGLO-SAXON  PERIOD.    449-1066. 

Ji.    THE  ANGLO-SAXON  CONQUEST  AND  ITS  PROBLEMS. 

CHADWICK,  Origin  of  the  English  Nation,  chs.  iii.,  iv.;  ASHLEY, 
Surveys,  "Medieval  Agrarian";  MEDLEY,  Constitutional  History, 
§  2 ;  MAITLAND,  Domesday  Book,  pp.  220-226. 

§  ii.    THE  LOCAL  GOVERNMENT. 

MAITLAND,  Domesday  Book,  essays  i.,  ii.;  STUBBS,  Constitutional 
History,  §§  45-5°;  P-  and  M.,  vol.  i.,  bk.  i.,  ch.  ii.;  vol.  ii.,  598-603  ; 
CHADWICK,  Origin  of  English  Nation,  chs.  vii.,  xi.;  Studies,  pp. 
239-248;  MEDLEY,  §§3,  47,  57;  HODGKIN,  History  of  England 
(to  1066),  ch.  vi.;  Essays  in  Anglo-Saxon  Law;  ADAMS,  Courts  of 
Law;  LAUGHLIN,  Legal  Procedure;  ZINKEISEN,  Anglo-Saxon  Courts 
of  Law;  LEA,  Superstition  and  Force,  i.,  The  '  'Wager  of  Law, "  ii., 
"The  Ordeal";  THAYER,  Evidence,  ch.  i.;  VINAGRADOFF,  Falkland; 
Growth  of  the  Manor,  bk.  ii. ;  ADAMS,  Anglo-Saxon  Feudalism; 
FUSTEL  DE  COULANGES,  Property  in  Land,  especially  Ashley's 
Introduction;  LIEBERMANN,  Ueber  die  Leges  Edwardi  Confessoris. 

§iii.    THE  CENTRAL  GOVERNMENT. 

STUBBS,  Constitutional  History,  §§51-62;  CHADWICK,  English 
Nation,  chs.  vi.,  xii.;  Studies,  pp.  357-366,  ch.  ix.,  and  Excursus  iv.; 
MEDLEY,  §§  72,  73,  passim;  PIKE,  House  of  Lords,  ch.  i.;  P.  and  M., 
i.,  18-21;  TASWELL-LANGMEAD,  English  Constitutional  History, 
pp.  22-28;  LARSON,  The  King's  Household. 

§  iv.    THE  ANGLO-SAXON  CHURCH. 

STUBBS,  Constitutional  History,  ch.  viii.;  GNEIST,  English  Con- 
stitution, ch.  v.;  MEDLEY,  §§82-84,  passim;  MAKOWER,  Consti- 
tutional History  of  the  Church  of  England,  §§  1-3;  BOHMER,  Kirche 
und  Stoat  in  England,  pp.  42-79. 

xzv 


xxvi  Collateral  Reading 

PART  II.    THE  NORMAN   CONQUEST— ITS   MORE    IMME- 
DIATE  RESULTS.     1066-1100. 

§  i.  NORMAN  INSTITUTIONS  AND  IDEAS  AT  THE  TIME  OF  THE 
CONQUEST. 

P.  and  M.,  vol.  i.,  bk.  i.,  ch.  iii.;  HASKINS,  Knight  Service  in 
Normandy;  ADAMS,  Civilisation  during  the  Middle  Ages,  ch.  ix.; 
EMERTON,  Medieval  Europe,  ch.  xiv.;  SKIGNOBOS,  The  Feudal 
Regime. 

§  ii.     NORMAN  AND  ANGLO-SAXON  INSTITUTIONS  COME  TOGETHER. 

P.  and  M.,  vol.  i.,  bk.  ii.,  ch.  i.,  §§  i,  3,  5,  12;  ch.  ii.,  §§  i,  2,  3; 
STUBBS,  Constitutional  History,  ch.  ix.;  GNEIST,  English  Consti- 
tution, ch.  viii.;  MEDLEY,  §§4,  5,  61,  75;  VINOGRADOFF,  Manor, 
bk.  iii.;  Villainage  in  England,  passim;  ASHLEY,  Economic  History, 
vol.  i.,  ch.  i.;  ROUND,  Feudal  England,  pp.  225-314;  BALDWIN, 
Scutage  and  Knight  Service;  MAITLAND,  Suitors  of  the  County  Courts; 
PIKE,  House  of  Lords,  chs.  ii.,  iii.;  ADAMS,  History  of  England  (1066- 
1216),  pp.  10-23,  38-5o;  MAKOWER,  §§4,  5;  BOHMER,  pp.  79-162. 

PART  III.    THE  PERIOD  OF  CONSTITUTION  MAKING. 
1100-1485. 

|  i.    THE  MAKING  OF  THE  JUDICIARY. 

P.  and  M.t  vol.  i.,  bk.  i.,  chs.  iv.,  vi.t  vii.,  and  pp.  430-457;  bk. 
ii.,  ch.  iii.;  vol.  ii.,  pp.  558-573,  617-661;  MAITLAND,  Pleas  of  the 
Crown  for  Gloucester,  pp.  xvii.-xliv. ;  Select  Pleas  of  the  Crown, 
pp.  xi.-xxiii.;  Select  Pleas  in  Manorial  Courts,  pp.  xv.-lxxiii.; 
Year  Books  of  Edward  II.,  i.,  ix.-xx.;  English  Law  and  the  Renais- 
sance; Roman  Canon  Law,  essay  iv.;  BIGELOW,  Procedure,  ch.  iii.; 
TRAILL,  Social  England,  i.,  274-298,  408-410;  ii.,  32-38,  476-489; 
MEDLEY,  §§48-56,  58;  84,  85,  passim;  THAYER,  Evidence,  chs.  ii.- 
iv.;  ADAMS,  Henry  I.'s  Writ  and  Descendants  of  Curia  Regis  in 
American  Hist.  Review,  viii.,  487-490;  xiii.,  11—15;  ROUND,  Com- 
mune of  London,  ch.  iv. ;  GROSS,  Coroners'  Rolls,  pp.  xiv.-xxxv.; 
BEARD,  Justice  of  the  Peace;  CHEYNEY,  English  Serfdom;  PAGE, 
Villainage;  PIKE,  House  of  Lords,  chs.  x.,  xi.;  POLLOCK,  Land  Laws, 
ch.  iv.;  STUBBS,  §  179,  passim;  JENKS,  Law  and  Politics,  pp.  32-45; 
Edward  Plantagenet,  ch.  ix.;  ADAMS,  History  of  England,  ch.  xiii.; 
chs.  xiv.f  xv.,  passim, 


Collateral  Reading  xxvii 

§  ii.    THE  EXECUTIVE. 

ADAMS,  Critical  Period  of  English  Constitutional  History;  Origin 
of  the  English  Constitution;  History  of  England,  ch.  xxi.;  MEDLEY, 
§§8-15,  passim;  McKECHNiE,  Magna  Carta,  pp.  215-561,  passim; 
BEMONT,  Charles  des  Libertts,  Introduction;  JENKS,  Myth  of  Magna 
Carta;  DICEY,  Privy  Council,  pts.  i.,  ii.;  BALDWIN,  Beginnings  of 
the  Council;  Early  Records;  Antiquities;  Council  of  Time  of  Richard 
II.;  Council  from  Edward  I.  to  Edward  III.;  STUBBS,  §367;  MAIT- 
LAND,  Memoranda  de  Parliamento,  pp.  xxxiv.-xlvii. 

§  iii.    THE  MAKING  OP  PARLIAMENT. 

STUBBS,  Constitutional  History,  §§200-218;  chs.  xvii.,  xx.; 
PIKE,  House  of  Lords,  chs.  iv.-ix.;  xv.,  pt.  i.;  GNEIST,  English 
Constitution,  chs.  xxiv.,  xxv.;  MEDLEY,  §§  18-26,  76  77;  28-31, 
33-39,  passim;  TASWELL-LANGMEAD,  chs.  viii.,  ix.;  RIESS,  Wahl- 
recht  zum  englischen  Parlament;  Ursprung  des  englischen  Unter- 
hauses;  MAITLAND,  Memoranda,  pp.  xxxiv.-lxxxix.;  SHIRLEY, 
Royal  Letters,  ii.,  pp.  xiv.-xxiii.;  DAVIS  and  TURNER,  The  St. 
Albans  Council  of  1213,  in  English  Historical  Review,  xx.,  -jfM)^ 
390;  xxi.,  297-399. 


PART  I 

The  Anglo-Saxon  Period 
449-1066 


SECTION  I 

THE  ANGLO-SAXON  CONQUEST  AND  ITS  PROBLEMS 

TO  study  the  constitutional  history  of  England 
means  to  study  the  origin  and  growth  of  those 
institutions  which  have  to  do  with  the  government  of 
the  English  people.  It  is  true  that  nearly  everything 
in  a  people's  life  has  at  least  an  indirect  bearing  upon 
the  making  of  its  government ;  but  in  the  study  of  this 
subject  it  is  a  practical  necessity  to  fix  the  attention 
especially  upon  certain  phases  of  the  people's  activity. 
Probably  no  two  scholars  would  agree  as  to  just  where 
the  domain  of  constitutional  history  ends  and  that  of 
such  subjects  as  legal  or  economic  history  or  sociology 
begins.  Such  agreement  is  neither  possible  nor  neces- 
sary; there  will  always  be  debatable  ground,  always 
some  overlapping.  But  one  cannot  go  far  upon  the 
wrong  road,  if  he  keep  his  eye  fixed  constantly  upon 
the  sole  purpose  of  his  study — an  understanding  of 
how  the  present  English  government  has  come  to  be 
what  it  is. 

The  broad,  fundamental  divisions  of  English  history 
are  the  following 1 : 

1  Strictly  speaking,  of  course,  there  was  no  English  history  in 
the  island  of  Britain  until  the  arrival  of  the  Anglo-Saxons. 

3 


4  The  Anglo-Saxon  Period 

a.  Britain  before  the  Roman  occupation  began,  name- 
ly, before  55  B.  c.   This  is  practically  prehistoric  Britain, 
fc.  Roman  Britain,  55  B.  c.-^oj  A.  D. 

c.  England  from  the  Anglo-Saxon  conquest  to  the 
Norman  Conquest,  449-1066. 

d.  England  from  the  Norman  Conquest  to  the  end 
of  the  middle  ages,  the  period  when  the  English  con- 
stitution was  in  the  making,  1066-1485. 

e.  The  modern  period,  when  the  constitution  was 
tested  and  developed. 

Constitutional  history  has  nothing  to  do  with  the 
first  division,  and  very  little  to  do  with  the  second, 
from  which  latter  period  little  or  nothing  that  is  found 
in  the  later  English  government  came  Our  institu- 
tional story  has  its  beginning  in  the  third  division,  the 
Anglo-Saxon  period.  It  is  exceedingly  important  to 
notice,  however,  that  this  is  distinctly  an  introductory 
period.  I_n_its_  fullest  sense,  English  constitutional^ 
history  did  not  begin  until  the  Norman  Conquest, 
because,  until  that  time,  there  were  not  present  in 
England  all  the  materials  out  of  which  the  constitu-" 
tion  was  to  grow.  The  Norman  people,  with  the  in- 
stitutions it  had  developed  in  Normandy,  was  lacking. 
The  most  important  period  in  our  study  is  the  great 
creative  period  following  the  Norman  Conquest.  This 
book  deals  with  the  introductory,  or  Anglo-Saxon 
period,  and  with  the  creative  period,  which  latter, 
speaking  broadly,  ends  with  the  middle  ages. 

The  Anglo-Saxon  period  is  filled  with  problems. 
Maitland  states  an  important  truth  about  all  early  insti- 
tutions in  the  following  words  concerning  primitive  law : 

The  grown  man  will  find  it  easier  to  think  the  thoughts  of 
the  school-boy  than  to  think  the  thoughts  of  the  baby. 


Anglo-Saxon  Conquest  and  its  Problems     5 

And  yet  the  doctrine  that  our  remote  forefathers  being 
simple  folk  had  simple  law,  dies  hard.  Too  often  we  allow 
ourselves  to  suppose  that,  could  we  but  get  back  to  the 
beginning,  we  should  find  that  all  was  intelligible  and 
should  then  be  able  to  watch  the  process  whereby  simple 
ideas  were  smothered  under  subtleties  and  technicalities. 
But  it  is  not  so.  Simplicity  is  the  outcome  of  techni- 
cal subtlety;  it  is  the  goal  not  the  starting  point.  As  we 
go  backwards  the  familiar  outlines  become  blurred,  the 
ideas  become  fluid,  and  instead  of  the  simple  we  find  the 
indefinite. 1 

Some  specific  reasons  for  the  difficulty  which  all 
scholars  find  in  understanding  Anglo-Saxon,  especially 
early  Anglo-Saxon,  institutions  may  be  stated.  There 
was  an  actual  complexity  of  custom,  pettiness  of  detail, 
and  infinite  local  variation.  The  people  of  those  times 
neither  thought  clearly  nor  spoke  with  precision  re- 
specting their  own  institutions;  they  were  incapable 
of  broad  generalisation  or  exact  definition,  and  never 
thought  of  the  possibility  of  saving  labour  and  doubt 
by  striving  for  greater  uniformity  and  simplicity. 
Men  were  interested  in  the  practical  problems  of  a 
particular  time  and  locality.  These  characteristics 
render  any  records,  which  they  have  left,  exceedingly 
difficult  to  interpret.  And  these  records,  as  we  now 
have  them,  are  very  fragmentary  and  incomplete. 

A  prominent  feature  of  the  Anglo-Saxon  govern- 
ment, alike  in  the  separate  kingdoms  and  in  England 
as  a  whole  after  the  approximate  union  of  these  king- 
doms, was  a  great  lack  of  co-ordination  between  the 
central  and  local  institutions.  A  great  gap  existed 
between  them,  which  many  Anglo-Saxon  kings  strove 

*  Maitland,  Domesday  Book  and  Beyond,  p.  9. 


6  The  Anglo-Saxon  Period 

sturdily,  but  for  the  most  part  unsuccessfully,  to 
bridge.  At  the  centre,  were  the  king  and  the  witqn, 
strengthened  in  later  times  by  the  king's  local  officials, 
the  sheriffs;  in  the  localities,  were  those  institutions 
and  customs  in  hundred  and  shire,  by  virtue  of  whicJT 
the  people  lived  in  some  degree  of  peace  and  adminis^ 
tered  a  rude  justice.  The  local  government  was  more 
important  than  the  central;  that  is,  most  of  the_reaT 
governing  was  done  by  local  means.  To  local  institu- 
tions and  customs,  then,  especial  study  must  be  given, 
not  because  they  involve  the  solution  of  interesting 
puzzles,  but  because  their  subject-matter  lies  at  the 
very  root  of  the  history  of  the  English  constitution.1 

In  order  to  understand  how  the  early  Englishmen 
governed  themselves  in  their  localities,  we  must  be 
able  to  answer  such  fundamental  questions  as  these: 
Were  the  majority  of  the  men  freemen  or  serfs?  Was 
there  a  nobility?  How  was  the  land  held?  Did  the 
people  live  together  in  villages  or  were  they  scattered  ? 
How  were  their  local  assemblies  made  up  ?  Were  there 
varying  grades  of  assemblies,  and,  if  so,  how  were  they 
related?  How  were  their  laws  made  and  how  were 
they  enforced?  Though  they  might  be  multiplied 
indefinitely,  these  inquiries  serve  to  indicate  the  nature 
of  the  subject-matter  and  the  important  lines  of  investi- 
gation in  the  early  Anglo-Saxon  period.2 

We  are  now  to  deal  with  the  institutions  of  a  country 

>  It  will  become  apparent  that  England  is  not  alone  concerned 
here,  but  that  we  are  looking  into  some  of  the  basic  matters  of  the 
constitutional  history  of  all  Germanic  peoples. 

J  It  should  be  said  in  advance  that  our  knowledge  of  all  Anglo- 
Saxon  local  institutions  is  still  very  incomplete,  and  that  on  many 
important  matters  scholars  are  far  from  being  in  agreement.  This 
work  can  attempt  nothing  more  than  to  reflect  the  present  stage  of 


Anglo-Saxon  Conquest  and  its  Problems     7 

after  a  great  invasion  and  conquest  have  taken  place. 
An  invading  people  has  more  or  less  completely  dis- 
placed the  former  inhabitants.  We  must  know  at  this 
point,  at  least  in  a  summary  fashion,  something  of  the 
condition  of  the  people  in  Britain  just  before  the  con- 
quest, something  of  the  conquerors  and  the  manner  of 
their  invasion,  and  the  more  obvious  and  immediate 
results  of  the  contact  of  the  two  peoples.  These  three 
lines  of  consideration  will  be  briefly  discussed  in  the 
order  mentioned. 

We  cannot  here  consider  at  any  length  the  extent 
to  which  the  native  Britons  had  become  Romanised 
during  the  four  centuries  in  which  Britain  was  a  Roman 
province,  or  how  much  Roman  law  and  custom  sur- 
vived the  withdrawal  of  the  legions.1  Britain  was 
the  last  of  Rome's  provinces  to  be  gained  and  the  first 
to  be  abandoned.  Rome's  famous  capacity  for  assimi- 
lation declined  rapidly  not  long  after  Agricola  had 
finished  his  work;  and,  moreover,  there  were  reasons 
why  no  great  efforts  were  made  towards  a  complete 
colonisation  of  the  island:  Britain  was  the  most 
northern  of  the  provinces,  and  its  peculiarly  dense 
forests  and  well-nigh  impassable  marshes  required  long- 
continued  and  persistent  effort  before  subdual.  This 
was  the  very  thing  that  the  Romans  were  not  capable 
of  at  that  time,  and,  as  they  have  left  on  record  their 

scholarship  on  these  questions.  If  the  problems  themselves  can 
be  so  stated  as  to  be  clearly  understood,  much  has  been  accom- 
plished; and  enough  is  now  known  so  that  an  intelligible  story  of 
institutional  development  can  be  told. 

1  These  questions  have  been  long  and  hotly  debated  and  the 
contest  is  not  yet  over.  There  can  be  no  doubt,  however,  as  to 
which  side  scholarly  opinion  is  more  and  more  favouring.  The 
older,  and,  as  it  may  be  called,  orthodox  view  seems  likely  to  be 
substantiated.  It  is  essentially  that  given  in  the  text. 


8  The  Anglo-Saxon  Period 

abhorrence  of  the  cold  and  rainy  climate,  we  may  feel 
sure  that  disinclination  was  added  to  inability.  And 
so  the  Romanisation  of  Britain  did  not  go  much  below 
the  surface.  This  is  not  to  deny  that  many  striking 
things  were  accomplished.  Many  military  stations 
were  founded,  some  of  which  early  grew  into  consider- 
able cities;  magnificent  roads  were  built;  colonists 
settled  in  favourable  places,  established  villas  on  a 
large  scale,  and  lived  in  great  state ;  mines  were  worked 
as  never  before;  Bath  became  a  fashionable  resort,  and 
London  a  commercial  centre.  But  all  this  was  done 
without  touching  the  mass  of  the  population.  A  super- 
ficial observer  of  the  time,  visiting  London  and  York, 
might  have  come  to  the  conclusion  that  the  same  thing 
had  happened  in  Britain  that  had  happened  in  Gaul 
and  Spain.  But  outside  the  city  walls  and  the  few 
Roman  villas  was  the  old  wild,  tribal,  druidical 
Britain;  and  the  material  remains  of  Rome's  occupation 
which  one  sees  in  England  to-day  are  out  of  all  pro- 
portion to  the  effect  which  that  occupation  had  upon 
the  Britons  themselves.  A  satisfactory  refutation  of 
the  theory  of  a  continuance  of  Roman  law  and  custom 
is  that,  in  the,  later  England,  there  is  almost  nothing 
Roman  whose  origin  cannot  be  traced  to  some  later 
importation.  When,  in  the  early  years  of  the  fifth 
century,  Stilicho  recalled  the  legions  from  Britain, 
the  Roman  inhabitants  of  the  island  were  left  unpro- 
tected from  the  wild  native  tribes;  these  Romans  of 
necessity  followed  the  legions,  and  the  native  Britons 
were  left  to  work  out  their  own  salvation  in  the  troub- 
lous times  that  followed.  Only  about  a  generation 
intervened  between  this  and  the  conquest  of  the  country 
by  German  tribes  from  the  continent.  There  were 


Anglo-Saxon  Conquest  and  its  Problems     9 

thus  in  Britain,  just  before  the  Anglo-Saxon  conquest, 
barbarous  and  disunited  Celtic  tribes,  a  small  city 
population  with  some  veneering  of  Roman  civilisation, 
and,  doubtless,  some  survival  of  the  characteristic 
Roman  agricultural  community,  the  villa.  But  this 
last  could  have  existed  only  in  very  limited  portions 
of  the  island. 

Of  the  Angles  and  Saxons  in  their  native  land,  little 
is  known. i  There  is  evidence  that,  before  the  con- 
quest of  Britain,  the  Angles  had  kings  and  a  well- 
defined  military  class,  and  that  this  nation  played 
the  leading  part  in  the  undertaking.  Probably  other 
surrounding  peoples  besides  the  Saxons  contributed 
to  the  movement;  but  only  in  the  case  of  the  Angles 
was  there  anything  in  the  nature  of  a  national  migra- 
tion. 2  It  is  a  trite  observation,  but  so  important  that 
it  will  bear  repetition,  that  the  insular  character  of 
Britain  has  been  one  of  the  most  important  influencing 
factors  in  the  history  of  her  people.  The  fact  that  the 
Anglo-Saxons  had  to  come  over-sea  made  the  Germanic 
invasion  of  Britain  different  from  that  of  any  other 
part  of  the  Roman  empire.  The  boats  were  small  and 
the  sea  tempestuous,  and,  however  purposeful  the 
movement  may  have  been  upon  the  part  of  the  fighting 
class,  the  number  of  invaders  could  never  have  been 
overwhelmingly  large  at  any  one  time.  Families, 

1  See  Chadwick,  The  Origin  of  the  English  Nation,  for  valuable 
investigations  concerning  the  original  location  of  the  Angles  and 
Saxons  and  the  primitive  civilisation  of  the  Angles. 

2  Chadwick  conjectures  that  the  invaders  of    southern  Britain 
were  termed  Saxons  by  the  natives  because  of  one  or  more  reigning 
families  there  of  Saxon  extraction,  and  that,  in  general,  Angles  and 
Saxons  were  mingled  in  the  invasion,  the  Angles    probably  con- 
stituting the  nobility.     Kent,  the  Isle  of  Wight,  and  part  of  Hamp- 
shire were  settled  by  Jutes, — Ibid.,  passim. 


to  The  Anglo-Saxon  Period 

cattle,  and  household  goods  were  probably  left  behind 
at  first.  It  was  only  very  gradually  and  after  much 
fighting  that,  precisely  after  the  fashion  of  the  Danes, 
four  centuries  later,  the  invaders  became  colonists  and 
brought  over  what  they  would  permanently  need. 
We  may  well  suppose  that  the  invaders  were,  for  the 
most  part,  freemen,  although  the  non-noble  freemen 
probably  did  not  come  in  great  numbers  until  the 
fighters  had  gained  a  hold  upon  the  soil.  There  would 
be  small  use  in  bringing  slaves  when  plenty  could  be 
had  from  among  the  conquered  Britons,  and  without 
doubt  many  wives  were  provided  from  the  same  source. 
It  is  also  warrantable  to  suppose  that,  whatever  minor 
class  distinctions  may  have  existed  in  the  fatherland, 
the  leaving  all  the  old  associations,  going  a  long  sea 
voyage  in  small  boats,  and  settling  a  new  country, 
where  land  was  plenty  but  had  to  be  fought  for,  had 
a  levelling  and  democratising  effect.  The  actual  com- 
ing in  of  the  Anglo-Saxons  lasted  over  a  century,  and 
it  was  two  centuries  before  the  conquest  of  the  island 
approached  completion.  That  the  invasion  of  Britain 
was  extremely  slow  should  be  carefully  noted  here,  for 
it  helps  account  for  the  conditions  which  prevailed 
in  the  succeeding  period. 

Of  the  immediate  results  of  the  contact  between 
Britons  and  Teutons,  perhaps  the  most  striking  and 
important  was  that  the^Britons  were  exterminated  or 
displaced  with  comparative  completeness_in_the  extreme 
east  and  south-east,  and  that  as  the  invasion  extended 
towards  the  west,  larger  and  larger  numbers  remained 
alive  and  on  their  land.  1  The  ground  was  not 


1  It  may  be  useful  here  to  point  out  some  important  methods  of 
investigating  early  Anglo-Saxon  history.     The  most  obvious  method, 


Anglo-Saxon  Conquest  and  its  Problems    n 

tested  with  the  same  desperation  by  the  natives  when 
they  had  much  territory  to  withdraw  to  as  when  they 
found  that  territory  growing  dangerously  limited. 
This  is  not  to  deny,  however,  a  very  sturdy  resist- 
ance at  all  times.  On  the  other  hand,  the  invasion 
spent  its  force  in  the  east,  where  the  first  comers 
settled  down  and  occupied  the  land.  The  more  re- 
mote regions  were  taken  up  more  gradually  by  smaller 
bands  that  represented  later  and  more  straggling 
arrivals  from  the  continent,  or,  as  was  often  the  case, 
colonies  that  left  the  older  and  more  thickly  settled 
portions  near  the  shore.  Long  contact  had  also  tem- 
pered the  race  animosity  that  seems  to  have  been  bitter 
at  first.  The  conquerors  were  learning  that  the  Britons 
might  be  made  very  useful,  and  the  latter  were  coming 
to  choose  a  life  of  greater  or  less  servility  in  preference 
to  death.  At  the  conclusion  of  the  conquest,  then, 
England  presented  by  no  means  a  uniform  appearance, 

of  studying  any  period  is,  of  course,  to  collect  all  the  written  records, 
public  and  private,  of  that  period,  organise  them,  study  them 
critically,  and  draw  conclusions.  But,  as  has  been  before  stated, 
written  documents  relating  to  the  period  in  question  are  so  scanty 
and  unsatisfactory  that  could  they  not  be  supplemented  by 
something  else  we  could  hardly  hope  to  reach  many  trustworthy 
conclusions.  Two  other  methods  of  research  have  produced  encour- 
aging results  and  seem  by  no  means  exhausted.  The  first  is  the 
study  of  the  land  itself,  the  physical  geography  and  general  topo- 
graphy of  England.  In  the  matter  of  the  Anglo-Saxon  conquest, 
much  has  been  learned  by  the  study  of  rivers  and  mountains,  the 
location  of  ancient  forests  and  marshes.  It  can  be  learned  in  this 
way  what  routes  the  various  bands  of  invaders  must  have  taken, 
where  their  way  was  barred,  and  where  the  enemy  was  able  to 
make  a  particularly  stubborn  resistance.  Many  obscure  passages 
in  the  scanty  records  have  thus  been  supplemented  and  explained. 
This  study  also  gives  valuable  hints  of  the  manner  of  life  after  the 
conquest,  which  is  the  vital  question.  Nothing  fades  out  so  slowly 
as  the  impress  made  upon  the  appearance  of  a  country  by  its  early 


12  The  Anglo-Saxon  Period 

and  this  broad  distinction  between  the  east  and  the 
west,  not  to  mention  many  minor  ones,  has  to  be  con- 
stantly taken  into  account. 

A  typical  settlement  in  the  east  of  England  in  the 
early  Anglo-Saxon  period  would  consist  of  a  group  of 
families,  most  of  them  connected  by  blood,  living 
together  in  a  quite  compact  village.  Each  of  the  houses 
had  its  separate  garden  plot.  Lying  back  of  the  houses, 
on  all  sides  of  the  village,  was  the  arable  land,  in  which 
each  freeman  had  his  portion.  This  portion,  however, 
did  not  lie  all  in  one  place,  but  consisted  of  small  oblong 
strips  scattered  about  very  confusedly  in  different  parts 
of  the  arable  fields.  This  strange  scattering  of  the 
individual  holdings  may  possibly  have  arisen  from 
extreme  care  to  have  all  the  holdings  equal  in  value: 

settlers — the  way  they  grouped  their  houses,  laid  out  their  fields, 
and  ploughed  them.  Such  an  impress  is  in  the  nature  of  the  case 
so  hard  to  change  that  many  parts  of  it  will  outlast  by  hundreds  of 
years  the  state  of  society  which  produced  it.  It  may  be  added, 
however,  that  no  kind  of  evidence  is  more  likely  to  remain  unap- 
preciated, or  is  more  difficult  to  handle  judiciously  when  once  its 
real  worth  has  become  recognised.  The  second  method  of  research 
is  that  of  working  backward  from  a  period  about  which  considerable 
is  known  to  the  period  anterior  about  which  little  is  known.  If  we 
get  a  cross-sectional  view  of  institutions  during  a  length  of  time 
sufficient  to  note  accurately  their  directions,  correlations,  and  the__ 
forces  acting  on  them,  it  enables  us  to  conclude  with  great  certainty 
the  roads  they  have  been  travelling  back  in  the  shadowy  region 
behind.  Taken  by  itself,  this  method  of  study  would  obviously 
carry  us  but  short  distances,  but  when  it  can  be  checked  and  verified 
by  even  a  very  little  evidence  of  a  different  sort,  then  its  value 
becomes  great,  and  the  results  are  illuminating  beyond  expecta- 
tion. It  is  not  so  much'm  the  mass  as  in  the  variety  of  evidence, 
the  being  able  to  bring  one  kind  to  bear  upon  another,  that  trust- 
worthy conclusions  are  attained  in  the  study  of  history.  Green's 
Making  of  England  contains  good  examples  of  the  first  of  these 
methods  of  study,  while  Maitland's  Domesday  Book  and  Beyond 
is  a  strikingly  brilliant  success  in  the  second 


Anglo-Saxon  Conquest  and  its  Problems    13 

the  quality  of  the  land  varying  from  place  to  place, 
it  was  proposed  that  each  member  of  the  settlement 
should  have  some  of  every  kind.  The  parcels  of  land 
being  small  were  necessarily  oblong  on  account  of  the 
exigencies  of  ploughing,  it  being  economy  of  time  and 
labour  to  turn  the  awkward  eight-ox  team  as  seldom 
as  possible.  Outside  the  arable  land,  lay  meadow, 
pasture,  woodland,  and  waste,  in  which  all  the  house- 
holders had  their  prescribed  rights.  These  lands  were 
in  no  way  marked  off  into  separate  holdings.  Owing 
to  the  fact  that  many  individuals  did  not  have  a  com- 
plete outfit  of  the  rude  agricultural  implements  of  the 
time  nor  a  sufficient  number  of  oxen,  it  was  the  custom 
of  the  villagers  to  cultivate  their  land  by  some  system 
of  mutual  assistance.  Such  settlements  as  these  were, 
doubtless,  a  reproduction  on  British  soil  of  something 
very  similar  which  the  Anglo-Saxons  had  known  in 
their  ancient  home.  Some  slaves  there  may  have  been 
in  all  of  them,  furnished  from  the  Britons  or  as  the 
result  of  strife  among  the  Teutonic  peoples  themselves ; 
but  in  these  eastern  settlements,  the  number  must 
always  have  been  small. 1 

In  the  west,  the  prevailing  type  of  settlement  was 
quite  different  and  seems  to  have  been  determined 
largely  by  previous  Celtic  arrangements,  into  which 
the  conquerors  fitted  themselves,  as  was  so  generally 
done  by  the  Germanic  conquerors  of  Gaul.  Instead 
of  compact  villages,  there  were  scattered  hamlets  or 
isolated  holdings,  and  the  number  of  slaves  was  large.2 

»  For  an  admirable  visualising  of  such  a  village  community,  see 
map  151*  in  Putzger,  Historischer  Schul- Atlas. 

2  See  the  charts,  illustrating  the  two  types  of  settlement  and 
their  persistence  to  the  present  time,  in  Maitland,  Domesday  Book 
and  Beyond,  between  pp,  16  and  17, 


14  The  Anglo-Saxon  Period 

The  Angles  and  Saxons  seized  upon  the  characteristic 
small  settlements  or  single  farms  of  the  Celts,  and, 
without  making  important  changes,  appropriated 
them,  and  kept  the  former  holders  to  labour  as  slaves ; 
whereas  in  the  east,  the  traces  of  the  older  agrarian 
system  were  quite  obliterated  in  the  course  of  the  long 
conflict  (after  a  hundred  years,  the  invasion  had  ad- 
vanced but  a  surprisingly  little  way  inland) ,  and  when 
the  newcomers  settled  down  to  cultivate  the  land, 
they  had  no  ready-made  system  to  adopt. 

Between  these  two  types  of  settlement,  there  was 
doubtless  a  great  number  of  variations.  There  may 
also  have  been  places  where  the  Roman  villa,  that 
great  estate,  owned  by  one  lord  and  worked  by  slaves 
and  coloni,  was  taken  possession  of  by  the  conqueror, 
who  now  became  the  lord,  and,  as  far  as  he  was  able^ 
continued  this  Roman  agrarian  unit  without  change. 
The  evidence  in  favour  of  any  survival  of  the  villa 
system  is  not  positive;  and,  as  the  system  could  never 
have  been  widespread  in  Britain,  it  may  be  believed 
that  the  extent  to  which  it  survived  the  Roman 
evacuation,  was  continued  by  the  Britons,  and  finally 
adopted  by  the  Anglo-Saxons,  must  have  been  very 
slight. 

Not  only  was  there  lack  of  uniformity  in  the  first 
Anglo-Saxon  settlements  in  Britain,  but  in  the  years 
following  there  was  constant  opportunity  for  innovation. 
Colonies  were  continually  being  formed  in  the  newer 
districts,  and  men  were  adopting  that  mode  of  life 
which  seemed  to  suit  best  the  particular  time  and 
locality;  there  was  little  accumulated  property,  things 
were  in  no  sense  stable,  and  wars,  famines,  or  pesti- 
lences easily  broke  up  existing  conditions  and  gave 


Anglo-Saxon  Conquest  and  its  Problems    15 

rise  to  new  ones.  "Agrarian  history  becomes  more 
catastrophic  as  we  trace  it  backwards,"  J  and  we  must 
regard  early  Anglo-Saxon  society  and  institutions  as 
extremely  subject  to  change.  Although,  taking  the 
country  as  a  whole,  the  number  of  Celts  that  survived 
was  large,  yet,  owing  to  their  subordinate  condition, 
they  contributed  almost  nothing  in  language  or  insti- 
tutions to  the  period  that  followed.  Thus,  as  very 
little  that  was  Roman  survived  the  period  of  Roman 
occupation,  so  very  little  that  was  either  Roman  or 
Celtic  survived  the  centuries  of  Anglo-Saxon  con- 
quest and  colonisation.  The  slowness  of  the  invasion 
and  the  resulting  bitterness  of  the  conflict2  precluded 
the  adoption  by  the  conquerors  of  the  manners  and 
customs  of  the  conquered,  while  it  gave  every  oppor- . 
tunity  for  change  and  innovation  in  the  conquerors' 
own  institutions. 

1  Maitland,  Domesday  Book  and  Beyond,  p.  365. 

2  Continental  history  at  this  time  teaches  that  sudden  and  over- 
whelming  invasion  often  resulted  in  little  bloodshed  or  displace- 
ment of  existing  populations. 


THE    LOCAL    GOVERNMENT1 

i.  The  Classes  of  Mena — Perhaps  there  is  no  subject 
in  early  English  history  in  which  one's  modern 
notions  are  so  likely  to  lead  him  astray  as  in  this 
matter  of  the  classes  of  men.  We  have  here  one 
of  the  best  examples  of  the  general  distinction  between 
the  clear-cut  and  definable  ideas  of  modern  times  and 
the  vague  and  fluid  ideas  of  the  past.2  This  is  espe- 
cially the  case  in  dealing  with  the  difference  between 
the  freeman  and  the  slave.  Slavery  and  freedom  in 
modern  times  are  usually  so  broadly  and  clearly  sepa- 
rated that  a  possibility  of  confusing  them  seems  ab- 
surd. But  in  Anglo-Saxon  times,  conditions  were  very 
different.  To  be  sure,  many  were  slaves  because  born 
so,  but  the  class  was  constantly  being  recruited  in  other 
ways:  foes  taken  in  battle,  men  in  every  way  the  equals 
of  the  conquerors,  and  of  Teutonic  as  well  as  Celtic 
blood,  became  slaves;  members  of  a  community  who 
may  have  long  lived  respected  by  their  neighbours 
might,  owing  to  a  variety  of  misfortunes,  be  obliged 
to  bow  their  heads  in  the  evil  time  and  part  more  or 

>  In  this  section,  the  author  is  under  constant  and  special  obli- 
gation to  the  work  of  Maitland,  especially  the  Domesday  Book  and 
Beyond. 

•  See  above,  pp.  4,  5. 


The  Local  Government  17 

less  completely  with  their  freedom.  It  was  impossible 
with  the  loose  ways  of  thinking  that  then  obtained  to 
allow  the  legal  status  of  a  man  to  be  entirely  unin- 
fluenced by  his  personality.  "  We  may  well  doubt 
whether  this  principle — '  The  slave  is  a  thing,  not  a 
person ' — can  be  fully  understood  by  a  grossly  barbarous 
age.  It  implies  the  idea  of  a  person,  and  in  the  world 
of  sense  we  find  not  persons,  but  men."1  With  this 
caution  in  mind,  the  Anglo-Saxon  population  may  be 
divided  as  follows:  at  the  bottom  of  society  were  the 
slaves  or  serfs,  men  lacking  freedom,  but  not  necessarily 
devoid  of  all -rights;  next  in  order  came  the  non-noble 
freemen,  the  ceorls;  and  above  them  were  the  nobles, 
the  eorls.  This  last  class  constituted  a  blood  nobility 
and  the  term  eorl  bore  no  official  signification.  From 
the  earliest  times  are  found  traces  of  a  nobility  by 
service,  and,  with  the  development  of  the  kingdoms, 
such  a  nobility  gained  in  importance.2 

2.  The  Hundred  and  Shire  and  their  Courts. — The  names 
and  sizes  of  the  territorial  divisions  next  larger  than 
the  township 3  were  very  various  in  early  Anglo-Saxon 
times.  There  were  wapentakes  in  the  north,  lathes  and 
rapes  in  Kent  and  Sussex,  shires  in  Cornwall,  and  hund- 
reds in  many  parts  of  southern  and  central  England,  es- 
pecially in  Wessex.  Generally,  the  southern  divisions 
were  much  smaller  than  the  northern,  as  would  naturally 

i  Maitland,  Domesday  Book  and  Beyond,  p.  27. 

3  Chadwick,  Studies  on  Anglo-Saxon  Institutions,  furnishes  de- 
tailed discussions  of  the  early  official  classes.  See  the  same  author's 
The  Origin  of  the  English  Nation,  pp.  296,  297,  for  a  theory  as  to 
why  there  were  no  freedmen  among  the  Anglo-Saxons. 

3  Township  is  perhaps  the  most  accurate  and  convenient  term 
to  apply  to  the  individual  settlement  or  village.  The  township,  while 
usually  having  some  economic  unity,  was  not  a  political  division. 


1 8  The  Anglo-Saxon  Period 

be  the  case  owing  to  the  greater  density  of  population 
in  the  south.  In  Wessex,  the  name  hundred  was  quite 
uniformly  used,  and  there  local  organisation  attained 
some  efficiency  earlier  than  elsewhere.  A  tradition 
survives  which  ascribes  to  Alfred  the  division  of  Eng- 
land into  hundreds.  When  the  Danelaw  was  gradu- 
ally won  back  by  Alfred  and  his  descendants,  and  all 
southern  and  central  England  were  feeling  the  unifying 
influence  of  the  strong  West-Saxon  kings,  many  things 
were  made  over  new,  and  it  is  quite  probable  that 
a  more  complete  local  organisation  and  the  use 
of  the  term  hundred  spread  outward  from  Wessex 
at  that  time.  Wapentake,  however,  still  remained 
the  name  used  for  the  corresponding  division  in 
the  north.  The  hundred  was  the  smallest  govern- 
mental division  of  Anglo-Saxon  times,  and,  serving 
chiefly  a  judicial  purpose,  is  often  spoken  of  as  the 
judicial  unit. l 

The  origin  of  the  shire,  the  territorial  division  next 

1  The  name  hundred  was  possibly  not  indigenous  to  Wessex 
itself,  and  may  have  been  borrowed  from  the  continent,  taking  the 
place  of  an  earlier  and  varied  terminology.  For  further  information 
on  the  primitive  English  hundred  and,  especially,  its  relation  to 
the  continental  hundred  see  Stubbs,  Constitutional  History  of  Eng- 
land, §  45,  and  Select  Charters,  pp.  68,  69.  The  source  material 
following  the  latter  reference  could  be  studied  here  with  much 
profit.  See  also  Chadwick,  Studies  on  Anglo-Saxon  Institutions, 
pp.  239-248.  "All  Teutonic  countries  know  a  unit,  which,  under 
the  name  of  hundert,  h&rath,  hundred,  huntari,  comprises  a  number 
of  villages,  and  is,  at  the  time  when  Teutonic  history  begins, 
the  primary  judicial  unit.  The  etymology  of  the  name  points  irre- 
sistibly to  the  conclusion  that  it  was  also,  at  one  time,  a  military 
unit.  But  this  is  not  to  say  that  it  had  not  an  older  character,  and, 
it  may  be,  an  older  name.  Dr.  Meitzen  has  shown  strong  reasons 
for  supposing  that  it  is  a  relic  of  the  pre-agricultural  stage,  in  which 
the  members  of  a  clan  fed  their  flocks  and  pitched  their  tents  on 
a  patch  of  territory  which  afterwards,  as  agriculture  developed, 


The  Local  Government  19 

larger  than  the  hundred,  is  much  better  understood. 
Some  shires,  as  Kent  and  Sussex,  are  coterminous  with 
the  ancient  kingdoms  bearing  those  names.  These 
kingdoms,  when  they  passed  under  West  Saxon  control, 
gradually  became  mere  local  divisions  of  a  united 
England  and  were  classed  as  shires,  a  name  which, 
contrary  to  its  earlier  use,  was  being  applied  to  large 
instead  of  small  divisions. 1  Other  shires,  as  Dorset 
and  Somerset  in  Wessex,  and  Norfolk  and  Suffolk  in 
East  Anglia,  stand  for  primitive  tribal  divisions.  Thus 
these  two  classes  of  shires  perpetuate  boundaries  as 
ancient  as  the  Anglo-Saxon  conquest.  In  the  midland 
districts,  the  shires  are  much  less  ancient  and  of  es- 
sentially different  origin.  Wnen  the  descendants  of 
Alfred  won  back  these  districts  from  the  Danes,  they 
divided  them  into  shires  for  military  and  administra- 
tive purposes,  and,  in  doing  so,  probably  took  little 
account  of  ancient  boundaries.  Here  the  shire  and  its 
principal  town  have  frequently  the  same  name,  the 
town  often  lying  near  the  shire's  centre.  This  probably 
indicates  that  the  towns  are  older  than  the  shires,  the 
former  having  been  used  as  fortresses  by  the  West 
Saxon  kings  or  perhaps  created  for  that  purpose. 
Worcester,  Northampton,  and  Bedford  are  examples 
of  this  midland  group  of  shires.  The  northern  shires, 
representing  pieces  of  the  ancient  Northumberland  and 

became  divided  into  villages.  .  .  .  the  extraordinary  differences 
in  the  sizes  and  contents  of  the  hundreds  seem  to  show  that  they 
could  hardly  have  been  in  origin  military  institutions,  ...  A 
police  institution  they  do,  undoubtedly,  become;  but  this  is  later." 
— Jenks,  Law  and  Politics  in  the  Middle  Ages,  pp.  164,  165. 

1  Many  ancient  local  names  that  contain  the  word  shire  indicate 
that  in  the  earliest  times  it  was  commonly  used  for  very  small 
divisions,  but  with  little  regularity  or  definiteness  of  meaning. 


20  The  Anglo-Saxon  Period 

Strathclyde,  have,  for  the  most  part,  originated  since 
the  Norman  Conquest. 1  In  connection  with  both 
hundreds  and  shires,  mention  has  been  made  of  the 
unifying  and  organising  activities  of  the  West  Saxon 
kings,  and  it  was  undoubtedly  owing  to  the  work  of 
these  kings  in  the  ninth  and  tenth  centuries  that  there 
came  to  be  two  quite  regular  grades  of  local  division 
with  the  name  hundred  applied  to  the  smaller  and 
shire  to  the  larger. 

In  both  hundred  and  shire,  popular  assemblies  were 
regularly  convened.  That  of  the  hundred,  the  hundred 
court,  as  it  is  usually  called,  was  concerned  with  judi- 
cial matters  only.  From  the  tenth  century,  it  met 
normally  every  four  weeks.2  It  was  competent  to 
deal  with  cases  of  all  sorts,  and  a  case  once  decided 
in  it  could  not  be  carried  to  any  higher  court.  In  fact 
there  was  no  such  thing  as  appeal,  in  the  modern 
technical  sense,  in  the  Anglo-Saxon  judicial  system. 
The  hundred  court,  however,  might,  and  often  did, 
refuse  to  entertain  a  case3  or  fail  to  reach  a  decision 
in  one.  Such  cases  might  then  be  taken  to  the  shire 
court,  and,  if  not  decided  there,  to  the  king;  and  oc- 
casionally cases  were  carried  directly  from  the  hundred 

1  See  Stubbs,  Constitutional  History  of  England,  §  48. 

2  There   seems  no  doubt  that  there  were  local  popular  courts 
in   districts    including  a  number  of   townships   long  before  there 
was    any    regular    division    of   the   country    into   hundreds    and 
shires.     The  use    of   a   small   territorial    division    for  police   pur- 
poses, perhaps  in  part  its  creation  to  that  end,  appears  to  have 
been  one  of  the  very  earliest  of  governmental  efforts  among  Ger- 
manic peoples. 

»  Perhaps  because  of  its  importance;  but  more  often  because  of 
some  malice  or  disability  under  which  the  party  to  the  suit  was 
labouring,  or  the  unrighteous  exercise  of  power  on  the  part  of  some 
local  lord,  the  case  was  thus  refused. 


21 


to  the  king. l  Taking  cases  to  the  king  was,  however, 
discouraged.  The  hundred  court  was  convened  by  a 
hundred-man  or  hundred  's-ealdor  and  was  presided 
over  by  a  reeve,  representing,  very  possibly,  the  king's 
interest.  Probably  most  of  the  free  landholders  of 
the  hundred  attended  either  in  person  or  by  deputy, 
and  this  body  of  freemen  exercised  the  judging  function, 
as  far  as  any  true  element  of  judgment  entered  into 
their  procedure.  There  was  nothing  in  the  nature  of 
a  professional  body  of  judges  or  lawyers  in  England 
until  long  after  the  Norman  Conquest. 

The  shire  court  was  convened  twice  a  year  by  the 
sheriff,  and  he,  together  with  the  ealdorman  and  bishop, 
was  present  at  the  sessions.  The  ealdorman,  originally 
having  an  official  character,  was, ,  towards  the  end  of 
the  tenth  century,  fast  becoming  the  independent  local 
noble  with  control  over  vast  territories,  and  his  at- 
tendance at  shire  courts  must  have  been  increasingly 
irregular.  Whether  he  or  the  sheriff  was  regarded  as 
the  presiding  or  constituting  officer  of  the  court,  it  is 
impossible  to  tell.  The  bishop  was  there  to  declare 
the  law  of  the  church  and  look  after  the  interests  of 
the  clergy,  inasmuch  as  the  court  dealt  both  with 
ecclesiastical  cases  and  ecclesiastical  persons.  All 
men  of  importance  in  the  shire  seem  to  have  attended 
the  shire  court  as  a  matter  of  course;  but  it  is  hard 
to  make  any  accurate  statement  regarding  the  others 
who  attended.  It  is  conjectured  that  in  very  early 
times  this  was  a  thoroughly  popular  assembly,  and, 
in  those  shires  which  perpetuated  the  boundaries  of 
early  independent  tribes  or  petty  kingdoms,  may  have 
been  a  lineal  descendant  of  a  tribal  assembly  attended 

i  See  Stubbs,  Select  Charters,  pp.  71,  73. 


22  The  Anglo-Saxon  Period 

by  the  armed  body  of  freemen.  But  it  had  become  a 
burdensome  thing  to  attend  the  now  regularly  sum- 
moned and  peaceful  shire  court.  Travelling  even  a 
short  distance  was  a  difficult  matter  in  those  days, 
and  the  time  consumed  by  the  sessions  and  the  journey 
might  seriously  interrupt  the  rural  economy.  At  the 
time  we  get  our  first  certain  knowledge  of  the  make-up 
of  the  court,  there  was  no  complete  attendance  of  the 
freemen,  and,  very  possibly,  the  territorialising  pro- 
cess, by  which,  after  the  Norman  Conquest,  the  burden 
of  suit  of  court  became  attached  to  certain  holdings 
of  land,  had  begun. l  But,  notwithstanding  this,  it 
may  be  said  of  the  shire  court,  as  of  the  hundred  court, 
that  it  was,  and  always  remained,  an  essentially  popular 
assembly. 

In  these  courts,  a  body  of  unwritten  customary  law 
was  being  administered  by  the  people  from  whom  it 
had  sprung,  and  in  whose  hands  it  was  undergoing  a 
natural  development.  It  was,  however,  a  very  primi- 
tive law,  dealing  largely  with  criminal  matters,  but 
without  making  any  conscious  distinction  between 
what  was  criminal  and  what  was  civil.  Deeds  of 
violence  were  very  common,  manslaughter,  wounding, 
and  cattle-stealing  being  the  most  numerous.  The 
Anglo-Saxon  period  strikingly  illustrates  the  transition 
from  the  primitive  state  of  society,  in  which  men  right 
their  own  wrongs,  to  the  time  when  something  which 

»  It  was  a  tendency  characteristic  of  the  middle  ages  to  terri- 
torialise  public  duties.  To  exact  such  duties  of  large  bodies  of 
men  by  dealing  with  them  personally  overtaxed  the  very  slight 
executive  powers  of  the  time.  A  piece  of  land  was  a  stable  thing, 
always  to  be  found,  and  could  stand  for  a  fixed  amount  of  public 
service  to  be  enforced  against  its  holder  or  holders,  without  reference 
to  changing  numbers  or  personnel. 


The  Local  Government  23 

may  be  roughly  called  the  state  steps  in  between  the 
wrong-doer  and  the  wronged  and  does  the  righting. 
The  individual  or  the  kin  still  had  a  good  deal  to  do 
about  it,  but  there  were  public  courts  which  prescribed 
just  how  it  should  be  done  and  themselves  took  a  large 
share  in  the  procedure. 1 

The  procedure  began  with  the  summoning  of  the 
defendant  to  the  court.  This  was  done,  not  by  an 
officer,  but  by  the  plaintiff  himself,  who  had  to  be  very 
careful,  however,  to  do  it  in  the  prescribed  manner  and 
at  a  certain  length  of  time  before  the  meeting  of  the 
court.  Such  summons  was  often  ineffective,  and  the 
courts  had  a  great  deal  of  trouble  in  making  their 
authority  felt,  especially  in  getting  criminals  before 
them.  The  imposition  of  fines,  which  was  the  principal 
means  of  compulsion,  would,  in  many  cases,  amount 
to  little,  and,  as  a  last  resort,  the  man  who  could  be 
dealt  with  in  no  other  way  was  outlawed:  that  is,  he 
was  put  outside  the  protection  of  the  law,  so  that  he 
might  be  killed  at  sight  like  a  wild  beast.  But  suppos- 
ing both  parties  to  the  suit  to  be  in  court,  the  next  step 
was  the  taking  of  the  fore-oath  by  the  plaintiff.  In 
this,  he  stated  his  case  according  to  a  set  form  of  words. 
The  fore-oath  was  followed  by  the  equally  formal  oath 
in  rebuttal  by  the  defendant.  But  it  might  happen 
that  he  could  not  take  it ;  the  oath  was  a  solemn  matter, 
and,  if  guilty,  he  might  hesitate  to  stand  before  his 
assembled  neighbours  and  make  the  assertion  which 
carried  with  it  a  damning  guilt.  On  the  other  hand, 
plaintiff  or  defendant  might  trip  in  repeating  their 

'  For  a  valuable  account  of  the  important  parts  of  this  procedure, 
see  P.  and  M.  ii.,  598-603 ;  also  Maitland  in  Traill's  Social  England  i., 
384-287. 


24  The  Anglo-Saxon  Period 

formulae,  and  any  slip  or  mistake,  at  this  or  any  other 
point  in  the  procedure,  was  fatal  to  the  cause  of  the 
one  making  it.  Apparently,  in  some  matters  of  small 
importance,  if  the  defendant  took  his  oath  successfully 
the  case  ended  at  that  point,  the  judgment  being  in  his 
favour.  Ordinarily,  after  the  two  oaths  mentioned, 
it  was  for  the  court  to  decide  which  party  should  make 
proof,  and  what  the  proof  should  be.  This  was  the 
real  judgment  in  the  case,  and  was  almost  the  only 
point  at  which  the  assembly,  that  is,  the  judging  body, 
could  make  itself  felt  in  any  rational  way.  The  proof 
was  usually  awarded  to  the  defendant,  and  this  action, 
considering  the  character  of  the  proof  oftenest  used, 
was,  doubtless,  somewhat  in  his  favour ;  but  there  might 
be  elements  in  the  situation  that  would  lead  to  the  op- 
posite action.  The  judgment,  then,  instead  of  coming 
where  we  should  naturally  look  for  it,  came  in  the 
middle  of  the  procedure  and  before  the  proof,  which,  in 
a  very  distant  way,  corresponds  to  the  modern  trial. 
This  seems  less  anomalous  when  the  nature  of  the 
proofs  is  understood. 

When  once  set  in  motion,  the  proofs  took  care  of 
themselves,  so  to  speak;  they  needed  no  attention  on 
the  part  of  the  court  except  to  see  that  they  were 
carried  out  according  to  the  strict  letter  of  the  ac- 
customed form.  They  were  of  two  classes,  oaths  and 
ordeals.  In  the  first  class,  were  the  oaths  of  the 
oath-helpers,  later  called  compurgators,  and  the  oaths 
of  witnesses  in  those  civil  suits  in  which  the  ownership 
of  property  was  in  question.  The  oath-helpers  took 
their  oaths,  not  because  they  had  any  knowledge  of 
the  facts  of  the  case,  but  because  they  were  willing  to 
imperil  their  souls  to  the  extent  of  swearing  with  the 


The  Local  Government  25 

man  whose  oath  they  were  to  strengthen.  In  early 
times,  the  oath-helpers  were  usually  required  from  the 
party's  kindred,  a  further  illustration  of  the  extreme 
irrationality  of  the  system.  Later,  this  custom  passed 
away,  and  the  idea  came  in  that  most  of  the  oath-helpers 
should  belong  to  the  same  general  class  in  society  as  he 
with  whom  they  swore.  The  value  of  their  united 
oaths  was  measured  according  to  their  number  and 
rank,  a  thegn's  oath  equalling  those  of  six  ceorls. 
Thus  the  gravity  of  the  crime  was  reflected  in  the 
number  and  quality  of  the  oath-helpers,  as  a  result  of 
which  it  would,  of  course,  happen  that  a  man  of  low 
rank  must  have  a  much  larger  number  for  the  same 
crime  than  a  man  of  high  rank.  The  result  of  a  suc- 
cessful oath-helping  does  not  seem  to  have  been  consid- 
ered so  much  a  proving  that  the  accused  was  innocent, 
although  it  may  have  to  some  extent  been  that,  as 
something  in  the  nature  of  a  vicarious  compensation; 
there  had  been  an  atonement  for  the  crime  through  the 
imperilling  of  the  souls  of  a  certain  number  of  men.1 
Doubtless  a  somewhat  more  rational  way  of  regarding 
this  form  of  proof  existed  in  later  Anglo-Saxon  times; 
indeed,  the  changes  in  the  system  that  have  just  been 
noted  indicate  that  this  was  so.  Proof  by  the  oaths 
of  witnesses  became  common  through  the  practice 
of  having  witnesses  present  when  exchanges  of  prop- 
erty were  made. 2  Such  exchanges  had  oftenest  to  do 
with  cattle,  and  the  presence  of  witnesses  became 

1  Speaking  of  the  early  time  when  kinsmen  were  oath-helpers, 
Maitland  says:  "The  plaintiff,  if  he  thought  that  there  had  been 
perjury,  would  have  the  satisfaction  of  knowing  that  some  twelve 
of  his  enemies  were  devoted  to  divine  vengeance." — P.  and  M.  ii., 
600. 

2  For  instances,  see  Stubbs,  Select  Charters,  pp.  66,  72. 


26  The  Anglo-Saxon  Period 

increasingly  imperative  during  the  Anglo-Saxon  period. 
Royal  decrees  upon  this  matter  were  frequent  and 
urgent,  showing,  if  other  evidence  were  not  abundant, 
how  great  a  problem  cattle-stealing  was  in  these 
primitive  communities.  If  a  man's  ownership  of  cer- 
tain cattle  was  called  in  question  and  he  was  not 
able  to  bring  forward  any  witness  of  his  purchase,  it 
was  practically  an  acknowledgment  of  theft.  Probably 
a  man  would  also  be  allowed  to  show  by  oaths  of  neigh- 
bours that  cattle  had  been  raised  by  him ;  but  disputes 
about  such  cattle  would  seldom  arise.  At  first  sight, 
these  practices  seem  very  much  like  our  modern 
witness  system,  but  there  is  an  important  differ- 
ence. These  ancient  witnesses  were  not  put  on 
oath  to  answer  in  court  any  questions  that  might 
be  put  to  them  in  order  to  bring  out  the  whole 
truth  about  the  matter  under  litigation.  They  knew 
beforehand  the  one  set  formula  to  which  they  would 
have  to  swear.  There  was  no  elasticity,  no  equity; 
it  was  simply  a  question  as  to  whether  they  could 
take  the  one  oath  which  was  to  be  the  defendant's 
proof. 

The  second  kind  of  proof,  the  ordeal,  might,  if  the 
court  so  judged,  be  resorted  to  after  the  fore-oath  and 
oath  in  rebuttal,  or  it  might  follow  a  more  or  less  un- 
successful oath-helping.  In  the  criminal  cases  other 
than  cattle-stealing,  there  was  no  attempt  to  use 
witnesses,  compurgation  and  ordeal  being  the  only 
proofs.  The  ordeal  was  a  deliberate  appeal  to  super- 
natural power  and  knowledge  by  men  who  felt  them- 
selves powerless  to  penetrate  the  mysteries  presented 
by  crime.  The  ordeals  of  hot  and  cold  water  and  hot 
iron  were  common.  The  wager  of  battle,  which  was, 


The  Local  Government  27 

properly  speaking,  an  ordeal,  was  not  used  by  the 
Anglo-Saxons. l 

In  a  procedure  dealing  largely  with  criminal  matters, 
we  naturally  look  for  punishments  as  likely  to  follow 
the  proofs;  but  there  was  very  little  punishment  of 
the  sort  that  might  be  expected.  There  were  no 
prisons,  and  executions  were  rare.  Nearly  every 
wrong  was  righted  by  a  fine,  and  the  system  of  fines 
had  become  so  minutely  elaborated  and  definitely 
fixed  by  custom  that,  in  imposing  them,  the  court 
exercised  little,  if  any,  discretionary  power.  If  a  man 
was  slain,  the  slayer  had  to  pay  a  fine,  called  the 
wer,  to  the  dead  man's  kin,  the  amount  of  the  wer  being 
determined  by  the  victim's  rank  in  society.  A  fine 
which  was  a  compensation  for  any  other  wrong  was 
paid  to  the  injured  party,  and  was  called  the  bot. 
Probably,  in  its  broadest  sense,  the  bot  included  the 
wer,  the  fundamental  idea  being  that  it  was  a  private 
compensation  proportioned  to  the  injury  done.  The 
bot  was  not  a  penalty.  But  in  the  case  of  most  crimes, 
a  fine,  called  wite,  was  also  paid  to  the  state,  this  fine 
being  of  a  penal  character.  In  the  shire  court,  part  of 
this  latter  went  to  the  ealdorman,  part  to  the  king, 
and  perhaps  something  also  to  the  sheriff.  Under  the 
later  and  stronger  kings,  as  the  sphere  of  the  royal 
peace  extended,  the  magnitude  and  number  of  the 
fines  going  directly  to  the  king  were  growing  rapidly, 
and  there  was  perhaps  approaching,  however  distantly, 
the  idea  that  a  crime  is  an  offence  against  the  state. 

1  For  a  full  discussion  of  the  primitive  methods  of  trial  see  H.  C. 
Lea:  Superstition  and  Force:  essays  on  the  wager  of  law,  the  wager 
of  battle,  the  ordeal,  and  the  torture. 

As  to  why  the  wager  of  battle  was  lacking  in  Anglo-Saxon  law 
see  P.  and  M.  i.,  50,  51. 


28  The  Anglo-Saxon  Period 

The  system  of  fines  was  a  mitigation  of  an  older, 
barbarous  system,  in  which  private  vengeance  and 
various  forms  of  capital  punishment  and  mutilation 
were  practised.  Some  of  these  barbarous  customs 
survived  still,  especially  in  dealing  with  slaves;  and 
some  crimes,  often  those  against  the  king,  no  one 
could  make  good  by  a  fine.  Such  were  known  as 
botless. 

The  last  step  in  the  proceedings  in  most  cases  was 
the  collection  of  the  bot  by  the  victorious  party.  This, 
like  the  initiation  of  the  case,  was  not  attended  to  by  an 
officer,  but  by  the  individual  concerned.  Here  again, 
however,  the  act  had  to  be  done  at  a  certain  time  and 
in  a  certain  way,  which  had  become  rigidly  fixed  by 
custom.  Public  authority  backed  up  the  individual  if 
he  met  resistance  in  his  lawful  undertaking,  even  the 
king  sometimes  riding  forth  with  his  followers  to  aid  in 
coercing  some  notoriously  contumacious  wrong-doer. 
But,  on  the  other  hand,  if  the  man  collecting  the  fine 
departed  in  the  slightest  degree  from  the  prescribed 
programme,  he  lost  all  the  benefits  of  his  successful 
suit.  While  it  may  be  said  that  these  Anglo-Saxons 
enjoyed  the  freedom  of  living  under  a  law  which  they 
themselves  had  made,  and  not  one  that  had  been 
imposed  upon  them  by  any  despotically  inclined  central 
power,  yet  the  rigid  formalism,  which  they  had  de- 
veloped, was  in  itself  a  grievous  tyranny  and  very  often 
defeated  the  ends  of  real  justice.  Although  this  law 
was  made  by  the  people,  the  people  were  very  ready 
to  accept  something  better,  when,  after  the  Norman 
Conquest,  the  king  opened  his  own  court  to  them. 

In  concluding  the  account  of  the  hundred  and  shire 
and  their  organisation,  something  further  should  be 


The  Local  Government  29 

said  of  the  shire's  two  most  prominent  officials,  the 
ealdorman  and  the  sheriff.  The  ealdorman  was 
theoretically  an  appointee  of  the  king;  he  had  a  dis- 
tinctly official  character,  and  might  be  placed  over  a 
single  shire  or  several  shires,  the  latter  being  usually 
the  case.  He  was  the  shire's  chief  man,  commanding 
its  military  force  and  having  the  position  in  its  court 
already  described.  But  when  ealdormen  are  first 
heard  of,  they  were  making  successful  attempts  to 
render  their  positions  hereditary,  and  were  identifying 
themselves  with  the  interests  of  their  localities  rather 
than  with  those  of  the  king.  In  the  late  Anglo-Saxon 
period,  they  were  becoming  a  great  landed  nobility, 
and  in  the  eleventh  century,  now  known  as  earls, l  the} 
practically  destroyed  the  country's  unity  and  prepared 
the  way  for  the  Norman  Conquest. 

At  the  time  when  the  ealdormen  were  ceasing  to  at- 
tend efficiently  to  the  king's  local  concerns,  the  humbler, 
but  more  truly  official,  sheriffs  were  being  more  and 
more  generally  used  .for  this  purpose.  We  hear  of  divers 
kinds  of  reeves  from  very  early  times,  among  them, 
king's  reeves,  who  seem  mainly  to  have  had  charge  of 
the  king's  landed  interests;  but  the  use  of  shire-reeves, 
that  is,  sheriffs,  by  the  king  was  not  at  all  general 
until  the  tenth  century.  The  sheriff  was  appointed 
by  the  king,  and  had  very  limited  grants  of  land.  Al- 
though there  appeared  in  the  office  of  sheriff  the  same 
non-official  tendencies  that  affected  the  ealdorman,  yet, 
during  the  Anglo-Saxon  period,  these  tendencies  did  not 

i  Owing  to  Danish  influence,  the  word  earl  (from  the  Danish 
jarl)  was  substituted  for  ealdorman.  It  should  not  be  confused 
with  the  earlier  Anglo-Saxon  eorl,  which  was  the  general  word  for 
the  man  of  noble  birth. 


30  The  Anglo-Saxon  Period 

have  an  opportunity  to  develop  far,  and  the  sheriff 
remained,  in  a  quite  real  sense,  a  royal  official.  The 
measurably  successful  maintenance  of  such  officials 
was  the  first  effective  reaching  out  by  the  central 
government  to  touch  and  influence  the  local  govern- 
ment. It  was  a  hint,  in  Anglo-Saxon  times,  of  the 
long  process  that  made  the  constitution  after  the  Nor- 
man Conquest.  Ordinarily  there  was  one  sheriff  for 
each  shire;  he  convened  the  shire  court,  accounted  for 
the  king's  share  of  the  fines  in  the  shire  and  hundred 
courts,  assembled  the  militia  at  the  king's  command, 
and  had  the  general  oversight  of  the  king's  property  in 
his  shire.  He  was  a  substantial  link  between  the  centre 
and  the  localities. 

In  estimating  the  extent  to  which  the  king  was  able 
to  make  himself  felt  locally  in  the  later  Anglo-Saxon 
period,  mention  must  be  made  of  the  king's  peace. 
Persons  or  things  that  were  in  any  special  way  connected 
with  the  king  were  likely  to  be  considered  as  falling 
within  the  king's  peace.  It  was  a  serious  matter  to 
break  the  king's  peace;  deeds  of  violence  against  the 
king's  officers  or  servants  or  committed  in  the  king's 
'  house  or  on  the  king's  highway  were  subject  to  a  severer 
penalty  than  those  against  ordinary  persons  or  in 
ordinary  places.  Thus  there  were  two  kinds  of  peace 
in  the  country:  the  king's  peace,  which  was  very  limited 
in  its  scope,  and  the  general  peace  of  the  local  courts. l 
But  taking  into  full  account  all  the  efforts  of  the  Anglo- 
Saxon  kings,  through  the  sheriffs  or  otherwise,  to  ex- 
tend their  authority  in  the  localities,  still  the  lack  of 

«  It  is  probable  that  this  second  form  of  peace  was  never  thus 
consciously  taken  account  of  at  the  time,  whereas  the  king's  peace 
Was  matter  of  frequent  mention. 


The  Local  Government  31 

co-ordination  between  the  central  and  local  govern- 
ments remained  very  great,  and  the  local  government, 
such  as  it  was,  would  probably  have  gone  on  without 
serious  difficulty  if  the  king  had  ceased  to  be.  As  the 
kings  grew  strong  and  the  country  more  united  under 
the  West  Saxon  dynasty,  there  was  a  broadening  of 
the  scope  of  the  king's  peace;  it  took  in  more  territory 
and  covered  more  persons.  But  even  at  the  Norman 
Conquest,  it  had  not  progressed  far,  and  it  was  left  to 
the  Norman  and  Angevin  kings  to  hasten  to  its  con- 
clusion a  process  that  had  only  begun. 

3.  Origin  and  Early  History  of  Boroughs. — In  England, 
the  urban  community,  the  municipality,  bears  the  name 
borough,  the  term  city  being  applied  to  those  boroughs 
which  have,  or  have  had,  a  cathedral  church.  The  be- 
ginning of  boroughs  was  the  beginning  of  a  special  form 
of  government  for  the  inhabitants  of  places  so  called,  by 
which  they  were  placed  in  an  exceptional  position,  and 
were  more  or  less  cut  off  from  the  ordinary  local  organ- 
isation. Governmentally  and  economically  they  were 
little  alien  units  springing  up  in  the  hundreds  and  shires. 
Thus  there  can  be  no  complete  knowledge  of  Anglo- 
Saxon  local  government  without  taking  them  into 
account,  and,  as  they  were  to  be  an  essential  factor 
in  the  making  of  the  later  English  constitution,  their 
primitive  and  fundamental  characteristics  are  of  im- 
portance. One  is  at  once  confronted  by  the  question 
of  origins.  What  was  the  thing  which  rendered  a  place 
urban  and  the  lack  of  which  left  it  simply  a  village 
or  township?  At  first,  he  is  inclined  to  think  of  popu- 
lation as  being  the  essential  thing:  when  a  community 
reaches  a  certain  size,  it  should  be  declared  a  borough 
and  receive  the  organisation  and  rights  of  one.  But 


32  The  Anglo-Saxon  Period 

such  a  conscious,  mechanical  process  could  only  take 
place  after  a  considerable  number  of  boroughs  existed 
and  people  had  clearly  in  mind  what  was  meant  by  one. 
What  was  the  origin  of  these  first  boroughs? 

During  the  Roman  period,  there  were  cities  in  Brit- 
ain, as  elsewhere  in  the  Roman  empire ;  and  these  Brit- 
ish cities  suffered  the  same  devastations  from  the 
incoming  barbarians  as  the  other  cities  of  the  empire 
north  of  the  Alps.  Much  of  a  material  character  sur- 
vived and,  in  several  places,  there  was  undoubtedly  a 
continuous  population;  but  it  is  improbable  that  any 
of  the  governmental  institutions  of  the  Roman  cities 
in  Britain  were  in  existence  after  the  century  and  a 
half  of  Anglo-Saxon  invasion  and  conquest.  Thus 
the  municipal  institutions  of  later  times  had  their 
origin  in  the  Anglo-Saxon  period. 

When  the  first  English  boroughs  emerge  from  the 
darkness  of  the  past,  the  things  that  distinguish  them 
from  the  ordinary  townships  are  few  and  simple.  But 
it  is  evident  that  a  differentiation  had  begun:  certain 
communities  had  started  to  travel  a  different  road  from 
that  of  the  majority;  and,  although  the  divergence  was 
at  first  small,  we  know  that  many  of  these  humble 
boroughs  at  length  became  true  municipalities,  and, 
on  the  way,  set  the  example  to  many  other  communities 
that  sought  to  adopt  their  forms  of  government  and 
attain  their  privileges.  But  the  difficulty  is  to  account 
for  the  first  distinguishing  traits  of  the  borough. 
Probably  these  did  not  spring  from  the  same  causes 
in  all  cases,  and,  at  present,  it  is  not  possible  to  dis- 
tinguish between  and  adequately  explain  these  causes. 
But  the  origin  of  an  important  group  of  midland  bor- 
oughs is  known  with  some  certainty. 


The  Local  Government  33 

When  Edward  the  Elder  and  his  descendants  were 
winning  back  the  territory  that  Alfred  had  ceded  to 
the  Danes,  they  established  many  fortresses  in  order 
that  their  hold  upon  the  country  might  be  secure. 1 
In  doing  this,  they  might  choose  an  uninhabited  spot, 
or  they  might  fortify  a  village  or  build  a  fortress  near 
one.  Such  fortresses  were  known  as  burhs,  of  which 
borough  is  a  later  form.  The  burhs  were,  in  a  special 
sense,  the  king's;  they  were  often  thought  of  as  his 
places  of  residence  and  his  peace  reigned  in  them. 
Every  Englishman's  house  was  his  castle,  and  it  was 
considered  a  very  grievous  offence  against  him  to  break 
the  peace  within  it ;  but  to  make  a  breach  of  the  peace 
in  the  king's  burh,  to  make  burhbryce,  was  far  more 
serious.  So  a  specially  stringent  peace,  enforced  by 
specially  severe  penalties,  reigned  there.  Fighters 
must  be  present  in  these  burhs,  and  the  burden  of  main- 
taining them  fell  upon  the  great  men  of  the  respective 
shires.  Where  rural  communities  had,  as  was  often 
the  case,  become  fortified  places,  we  see  beginning 
a  strange  mixture  of  population.  A  well-protected 
place  and  one  where  a  special  peace  reigned  was  always 
attractive  to  those  whose  calling  required  security: 
artisans  and  traders  were  attracted,  and,  i£  the  burh 
were  favourably  situated,  a  market  might  come  to  be 
regularly  held  in  it.  Thus  a  new  and  different  element 
of  population  was  added.  Often  the  shire  court  was 
held  in  what  we  may  now  venture  to  call  the  borough, 
and  increased  its  importance.  But  the  boroughs  more 
and  more  needed  courts  of  their  own,  and  seem  to  have 
had  them  quite  generally  by  the  late  tenth  century. 
Such  courts  were  co-ordinate  with  the  hundred  courts 

1  See  above,  pp.  18,  19. 


34  The  Anglo-Saxon  Period 

and  so  took  the  boroughs  out  of  the  hundredal  juris- 
diction. Thus  the  differentiation  was  well  started, 
and  yet  there  was  no  borough  government  apart  from 
the  court,  which  was,  no  doubt,  conducted  much  as  was 
the  hundred  court.  And  there  was  no  greater  unity, 
nothing  looking  more  towards  modern  municipal  cor- 
porateness,  than  in  any  of  the  rural  villages.  All  the 
elements  that  had  gone  to  form  this  primitive  borough, 
the  old  arable  fields  of  the  original  settlers,  with  the 
pasture  and  waste  surrounding,  and  the  rural  traditions 
and  customs  which  these  implied,  the  houses  owned 
by  the  great  men  of  the  shire,  the  descendants  per- 
haps of  those  who  maintained  the  early  garrison, 
the  people  who  looked  to  these  men  as  their  lords,  and, 
finally,  the  later  industrial  element,  that  was  tending 
to  assimilate  the  rest — all  these  remained  clearly  dis- 
cernible, and  many  traces  of  them  lingered  for  a 
remarkably  long  while.  But  what  these  midland 
boroughs  had  attained  was  a  distinctive  name,  a  court 
that  enforced  a  stringent  peace,  a  position  of  import- 
ance in  the  shire,  a  somewhat  shifting  and  varied  popu- 
lation, and  a  beginning  of  industrial  and  commercial 
activity.  By  no  means  all  the  fortresses  built  to  hold 
the  midlands  in  subjection  were  nuclei  of  boroughs, 
but  many  of  them  went  through  substantially  the  evo- 
lution that  has  been  described. 

After  the  conception  of  a  borough,  such  as  we  have 
been  examining,  was  in  existence,  there  was  always 
the  possibility  of  its  being  more  or  less  consciously 
adopted  by  centres  of  population  where  no  king's  burh 
had  been.  But  it  certainly  cannot  be  affirmed  that 
all  the  boroughs  of  later  times  either  began  as  king's 
burhs  or  received  their  distinguishing  governmental 


The  Local  Government  35 

forms  from  places  that  had  so  started.  The  fortified  resi- 
dences of  great  nobles,  monasteries,  seaports,  or  any 
places  favourably  situated  for  the  establishment  of  mar- 
kets were  centres  about  which  a  considerable  population 
might  gather;  and,  to  meet  the  judicial  needs  of  such 
centres,  especially  where  much  trading  was  carried 
on,  it  seems  probable  that  special  courts  might  arise 
and  the  institutional  distinction  from  the  ordinary 
townships  be  thus  established.  Populations  which  gath- 
ered about  the  residences  of  lay  or  ecclesiastical  lords 
were  drawn  by  the  industrial  needs  of  such  establish- 
ments. Such  needs  were  very  varied.  The  labourers 
and  craftsmen  who  met  them  came  often  from  the 
servile  or  semi-servile  classes,  and  the  rude  towns  which 
they  constituted  were  regarded  as  belonging  to  the 
lords.  Such  industrial  groups  might,  of  course,  form 
upon  the  king's  extensive  domains,  and,  if  they  de- 
veloped or  acquired  the  borough  qualities,  add  to  the 
number  of  boroughs  that  he  already  possessed.  It  is 
not  certain,  however,  that  the  midland  fortress  bor- 
oughs were  the  first  places  to  differentiate  from  the 
rural  communities,  although  they  seem  to  have  fur- 
nished a  name  that,  by  some  means,  became  identified 
with  such  differentiation.  At  any  point  in  the  later 
Anglo-Saxon  period,  there  can  be  found  a  group  of 
boroughs  distinctly  recognised  as  such,  the  old  boroughs. 
These  may  have  originated  in  any  of  the  ways  above 
mentioned.  There  can  also  be  found  communities  in 
all  stages  of  progress  towards  becoming  boroughs,  and, 
in  the  case  of  some  of  them,  it  is  impossible  to  conclude 
whether  they  may  be  properly  considered  boroughs. 
This  was  still  the  situation  at  the  Norman  Conquest. 
By  that  time,  forces  which  had  been  increasing  the 


36  The  Anglo-Saxon  Period 

powers  of  the  great  landholders  and  depressing  the 
status  of  the  middle-class  freemen  were  more  and  more 
bringing  all  boroughs  distinctly  under  lords,  who  en- 
joyed various  financial  and  judicial  privileges  in  them. 

The  tenure  by  which  real  estate  was  held  in  the 
boroughs  was  known  as  burgage  and  was  based  upon  a 
money  rent.  It  was  a  heritable  tenure  and  much  like 
free  socage,  which  latter  was  to  be  the  characteristic 
tenure  of  the  non-noble  freemen.  1  Burgage  has  been 
described  as  a  sort  of  town  socage.  How  a  tenure 
purely  at  a  money  rent  arose  at  such  an  early  time  is 
an  interesting  but  obscure  matter.  Probably  it  was 
originally  a  commutation  of  some  earlier  and  more 
uncertain  service.2  Uncertain  service  was  the  charac- 
teristic of  unfree  tenure,  and  when  this  was  com- 
muted into  burgage  tenure  by  the  lord  of  a  semi-servile 
industrial  group,  it  went  far  towards  differentiating 
that  group  from  an  ordinary  manor  and  started  it 
towards  attaining  the  organisation  and  privileges  of 
the  more  ancient  boroughs. 

As  the  boroughs  grew  in  wealth  through  industry 
and  trade,  it  became  possible  for  their  lords  to  derive 
a  greater  income  from  them;  and,  as  the  royal  boroughs 
were  far  the  most  numerous,  the  king  profited  most. 
The  imposition  of  various  tolls  was  always  the  ac- 
companiment of  a  flourishing  market  upon  any  lord's 
domains.  As  the  business  of  the  borough  courts  in- 
creased, the  fines  received  by  the  king  from  them,  as 
from  the  shire  courts,  increased.  Thus  a  substantial 
revenue  was  furnished  the  king  from  his  boroughs,  con- 
sisting of  rents,  tolls,  and  fines.  These  items,  taken 

«  See  below,  p.  83  and  note  i. 

»  Maitland,  Domesday  Book  and  Beyond,  pp.  198-200. 


The  Local  Government  37 

together,  were  known  as  the  firma  burgi,  and  formed 
part  of  the  ferm  of  the  shire  for  which  the  sheriff  was 
held  responsible.  The  boroughs  were  not  slow  to 
recognise  that  they  differed  from  the  other  com- 
munities, that  they  had  special  needs,  and  that,  as 
population  and  wealth  increased,  so  did  their  power 
to  obtain  privileges  from  their  lords.  To  gain  the  right 
to  pay  the  sheriff  the  firma  burgi  in  the  form  of  a  fixed, 
lump  sum,  instead  of  running  the  chance  of  its  constant 
increase  and  suffering  the  petty  annoyance  of  having 
it  dealt  with  in  detail,  was  the  first  substantial  step 
towards  independence  taken  by  the  boroughs.  To  be 
able  to  deal  with  the  sheriff  solely  at  the  gate  became  a 
supreme  ambition.  But  the  story  of  the  borough's 
strife  for  independence  follows,  rather  than  precedes, 
the  Conquest.  The  significant  facts  to  note  here 
are  that  the  boroughs  had  come  to  contain  an  im- 
portant, middle-class  population;  that  they  had  a 
form  of  government  peculiarly  their  own,  an  in- 
creasing esprit  de  corps,  and  a  knowledge  of  their  own 
special  needs. 

4.  Anglo-Saxon  Feudalism. — With  the  consideration 
of  the  boroughs,  there  has  been  completed  a  brief  sur- 
vey of  the  Anglo-Saxon  local  government  as  it  existed 
in  the  earliest  times  of  which  we  have  any  important 
knowledge.  But  even  while  the  boroughs  were  coming 
into  existence,  and,  in  its  beginnings,  probably  an- 
tedating them,  a  profound  change  was  taking  place  in 
Anglo-Saxon  society  and  local  government.  It  has 
been  shown  that,  in  their  conquest  and  occupation  of 
the  country,  the  Anglo-Saxons  produced  two  general 
types  of  settlement:  in  the  east,  the  free  villages; 
in  the  west,  the  scattered  hamlets  possessed  by  the 


38  The  Anglo-Saxon  Period 

conquerors  and  worked  by  the  enslaved  natives. 1  By 
the  end  of  the  Anglo-Saxon  period,  some  improve- 
ment in  the  condition  of  the  slaves  had  taken  place,  but 
many  freemen  had  lost  their  full  rights  in  the  land  and 
were  lapsing  into  a  condition  of  more  or  less  dependence 
upon  great  landholders.  In  the  east,  certainly,  the 
land  had  gotten  into  the  hands  of  fewer  men,  and 
manors  were  taking  the  place  of  the  old  free  townships. 
By  a  manor,  is  meant  an  economic  unit  of  population 
in  which  one  man,  the  lord,  owned  the  land,  and  the 
other  men  held  portions  of  it  under  him  by  various 
services  and  in  varying  degrees  of  dependence.  The 
lord  also  held  a  court  which  the  men  of  the  manor  were 
bound  to  attend  and  in  which  they  were  tried. 

Divers  economic  and  semi-governmental  forces  shared 
in  the  change  which  brought  forth  manors,  > forces 
which,  at  the  start,  are  hard  to  distinguish,  and  which 
tended  constantly  to  coalesce.  In  many  parts  of  west- 
ern Europe,  as  well  as  in  England,  populations  that 
had  been  wandering  tribes  were  becoming  station- 
ary, denser,  more  civilised.  As  a  result,  a  more  effi- 
cient government  was  needed;  but  it  would  have 
required  a  long  time  to  evolve  a  permanent  central 
power  that  could  furnish  this.  In  the  meantime,  it 
must  be  supplied  by  some  power  that  could  be  created 
or  developed  more  quickly,  that  is,  a  local  power.  It 
occurs  to  one  that  there  was  already  in  England  a 
system  of  local  government,  and  that  it  needed  only  a 
fuller  development  of  this  to  meet  the  new  demands. 
However  natural  this  may  seem,  it  was  not  what  took 
place,  and  a  little  reflection  will  show  that  no  short 
process  could  have  rendered  assemblies,  constituted 

1  See  above,  pp.  12-14. 


The  Local  Government  39 

as  those  of  the  hundred  and  shire  were,  efficient.  A 
rapid  change  was  required,  and  it  meant  that  the 
land  and  the  power  were  to  pass  from  the  hands  of  the 
many  into  the  hands  of  the  few.  This  was  substan- 
tially what  has  happened,  under  analogous  circum- 
stances, in  many  parts  of  the  world  and  at  many 
different  times.  In  a  broad  sense  of  the  term,  it  was  a 
feudal  process ;  it  was  the  acquisition  of  economic  ad- 
vantage and  some  degree  of  political  power  by  private 
individuals.  Its  results  in  England  may  be  termed 
Anglo-Saxon  feudalism.  But  the  process  was  far  from 
complete  at  the  end  of  the  Anglo-Saxon  period.  The 
forces  causing  it  were  neither  so  great  nor  so  sudden 
as  they  have,  at  times,  been  elsewhere,  and  the  older 
local  organisation  was  not  without  strength  and  tenac- 
ity. Hence  local  conditions  in  England,  upon  the  eve 
of  the  Norman  Conquest,  are  very  hard  to  understand. 
There  was  neither  the  old  organisation  and  classifica- 
tion of  men  nor  the  new;  society  and  institutions 
were  in  a  fluid  condition,  and  although  one  can  see 
quite  clearly  from  what  and  to  what  they  were  tend- 
ing, he  must  be  content  with  very  general  ideas  as  to 
just  what  they  were. 

It  is  necessary  to  examine  some  of  the  specific  pro- 
cesses that  effected  or  constituted  this  change.  Com- 
mendation was  the  act  by  which  one  man  entered  into 
such  a  relation  with  another  that  the  latter  became  his 
lord.  It  was  a  personal  relation  and  for  mutual  bene- 
fit. The  lord  rendered  protection  and  guaranty,  and 
was  often  called  the  defensor  or  tutor  of  his  man.  In 
return,  he  received  the  value  of  an  armed  retainer 
or  some  other  more  or  less  clearly  defined  service.  The 
object  of  the  man  in  getting  a  lord  was  to  gain,  by 


40  The  Anglo-Saxon  Period 

this  private  transaction,  greater  security  in  troublous 
times  than  was  afforded  by  the  crude  local  government, 
or  it  was  to  obtain  some  economic  advantage  through 
connection  with  a  great  landholder.  Probably  in  most 
cases  the  man  acted  with  a  mixed  motive.  Simple  as 
this  relation  of  lord  and  man  seems,  it  was  capable 
of  great  variation:  to  become  the  men  of  some  lords, 
under  some  circumstances,  meant  an  actual  rise  in 
status;  there  was  something  honourable,  almost  enno- 
bling, about  the  act ;  on  the  other  hand,  commendation 
often  lowered  the  man's  status,  and,  if  it  did  not  mean 
an  immediate  loss  of  freedom,  it  looked  in  that  direction. 
There  was  no  technical  exactness,  and  the  relation  of 
lord  and  man  might  imply  almost  anything.  But  one 
generalisation  can  be  made  at  this  point:  the  class  of 
non-noble  freemen  was  becoming  less  homogeneous, 
it  was  splitting.  The  change  was  that  sharper  division 
into  classes  likely  to  result  from  a  more  settled  life 
and  a  denser  population.  No  one  was  at  first  con- 
cerned with  furthering  it;  it  took  place  naturally,  for 
it  solved  a  problem  of  the  times. 

One  cannot  fully  understand  any  medieval  relation 
between  lord  and  man  until  he  knows  to  what  extent 
the  tenure  of  land  was  involved,  for  a  man's  legal 
status  was  closely  related  to  the  character  of  his  tenure 
and  was  often  affected  by  it.  In  Anglo-Saxon  com- 
mendation, land  was  sometimes  involved  and  some- 
times not.  The  man  might  bring  land  to  the  lord  and, 
in  some  sort,  hold  it  under  him,  being  able  to  withdraw 
the  land  at  any  time  and  "go  with  it"  to  another  lord, 
and,  in  some  cases,  he  might  have  no  such  power. 
Also  the  land  might  come  from  the  lord  and  be  granted 
to  the  man,  in  which  instance  the  latter's  liberty  in 


The  Local  Government  41 

disposing  of  it  was  probably  less.  There  was  no  regular 
scheme,  as  in  the  continental  feudal  system,  by  which, 
as  between  lord  and  vassal,  the  ownership  of  the  land 
always  lay  with  the  lord,  and  everybody  must  hold  his 
land  of  some  one.  In  the  Anglo-Saxon  relation,  the 
ownership  of  the  land,  as  far  as  there  was  any  concep- 
tion of  ownership,  might  lie  with  the  man;  men  held 
land  under  their  lords,  that  is,  under  their  protection 
and  guaranty,  rather  than  of  them.  And  yet,  in  the 
frequent  lessening  of  the  man's  freedom  to  "go  with 
the  land"  where  he  chose,  we  may  see  the  lord  gaining 
some  right  in  the  land,  although  just  what  it  was  may 
be  too  vague  to  express. 

After  commendation  had  become  well  established, 
the  kings  took  account  of  it  for  a  purpose  of  their  own, 
and  this  resulted  in  some  extension  of  the  practice  and 
added  something  to  its  character.  As  has  been  shown, 
a  great  weakness  in  the  Anglo-Saxon  local  courts  was 
their  inability  to  make  their  authority  felt ;  men  were 
not  easily  gotten  to  court  or  held  to  the  court's  decrees.1 
It  was  a  police  problem.  In  very  early  times,  when 
the  solidarity  of  the  kin  was  great,  it  was  natural  to 
look  to  the  kin  to  hold  its  members  answerable.  Later, 
such  police  responsibility  was  in  part  territorialised,  and 
the  hundred  was  made  a  kind  of  police  unit  and  was 
required  to  bring  to  justice  those  who  had  committed 
crime  within  its  bounds.  But  this  solution  was  in- 
adequate; the  state  still  found  it  hard  to  deal  with  the 
criminal  who  had  little  or  no  property.  The  later  and 
greater  kings,  who  were  striving  to  keep  the  country  in 
order  and  who  saw  that  greater  efficiency  in  the  local 
courts  would  increase  their  own  revenue,  found  in  the 

»  See  above,  p.  23. 


42  The  Anglo-Saxon  Period 

new  grouping  of  men  under  lords  a  way  to  meet  the 
police  difficulty.  Let  the  lords,  men  of  substance  and 
responsibility,  be  held  liable  for  their  men,  and  let  all 
men  have  lords.  Let  there  be  no  more  lordless  and 
irresponsible  men  wandering  about  the  country,  whom 
it  was  no  one's  business  to  bring  to  justice  and  from 
whom  it  was  impossible  to  collect  fines.  Such  was  the 
substance  of  many  decrees  of  the  later  Anglo-Saxon 
kings.  But  the  police  function  is  a  public  one,  a  thing 
properly  belonging  to  the  state  and  to  be  enforced  by 
the  state's  officers.  The  state  was  here  using  the  power 
and  position  of  private  individuals  at  a  point  where  its 
own  means  of  meeting  a  governmental  problem  broke 
down.  Such  a  shifting  of  a  properly  public  burden  to 
private  shoulders  is,  in  the  broad  sense  of  the  word,  a 
feudal  process,  *  and  thus  commendation  came  to  have 
a  significance  that  it  did  not  have  in  its  more  purely 
economic  stage.  The  relation  created  by  commenda- 
tion gave  to  the  lord  no  judicial  authority  over  his  men. 
But  placing  this  police  duty  upon  the  lords,  albeit  in 
connection  with  public  courts,  may  seem  the  first  step 
in  gaining  such  authority.  As  a  matter  of  fact,  how- 
ever, private  courts  sprang  from  another  source;  but 
commendation  and  what  went  with  it  brought  forth 
conditions  very  favourable  to  their  growth. 

Private  jurisdiction,  the  power  of  a  lord  to  hold  a 
court  for  his  men  and  enjoy  its  profits,  had  its 
origin  in  grants  of  bookland.  In  their  earliest  form, 
these  were  grants  made  by  the  king  to  some  church, 
that  is,  to  some  bishop  or  abbot,  of  certain  rights  and 
privileges  over  a  piece  of  land  and  the  people  on  the 

•  For  a  fuller  statement  of  the  meaning  of  the  term  feudal,  see 
below,  pp.  74-76, 


The  Local  Government  43 

land.  The  grants  were  evidenced  by  a  written  docu- 
ment, known  as  the  land-book,  and  their  permanence 
was  further  ensured  by  the  anathema  of  the  church. 
Falkland  was  land  that  remained  under  the  folklaw, 
that  is,  the  unwritten,  customary  law — land  over  which 
no  right,  based  upon  a  written  charter  or  book,  had 
passed. 1  The  question,  whether  the  king,  in  making 
his  grants  of  bookland,  bestowed  the  ownership  of  the 
land  upon  the  church,  is  a  difficult  one.  Did  he  give 
the  land  to  the  church  and  thus  rob  of  their  ownership 
all  the  people  living  on  it? 

A  satisfactory  answer  cannot  be  given  because, 
in  the  middle  ages,  there  was  no  sharp  distinction 
between  private  ownership  and  the  public  authority 
which  the  state  has  over  all  its  territory.  The  Latin 
word  dominium,  then  in  common  use,  generally  implied 
something  of  both.  It  seems  probable,  however,  that, 
in  the  early  grants  of  bookland,  the  king  did  not  give 
away  the  land,  the  ownership  of  which,  as  far  as  owner- 
ship was  conceived  of,  remained  where  it  was  already; 
but  he  did  give  away  rights  which,  according  to  modern 
thought,  no  state  could  part  with  without  destroying 
itself,  that  is,  distinctly  public  rights.  Yet  the  king 
could  not  carry  this  beyond  a  certain  point,  for,  while 
he  remained  king,  he  was  king  over  every  foot  of  soil 
in  his  country,  and,  as  such,  there  was  something 
which  he  could  not  give  away. 

Two  questions  may  now  be  asked,  the  answers  to 
which  should  show  the  part  played  by  bookland  in 

>  See  Vinogradoff,  Falkland,  English  Historical  Review,  viii., 
1-17.  Before  Vinogradoff 's  work,  it  had  been  the  accepted  view 
of  historians  that  folkland  was  public  land,  the  land  owned  by  the 
folk  as  a  whole. 


44  The  Anglo-Saxon  Period 

the  changing  Anglo-Saxon  society.  Did  the  grants 
establish  any  abiding  relation  between  grantor  and 
grantee,  and,  if  so,  of  what  kind?  What  were  the 
specific  things  which  the  king  gave  away?  In  answer 
to  the  first  question,  it  may  be  said  that  there  was  more 
of  the  out  and  out  gift  and  less  of  the  loan  or  conditional 
grant  in  these  cases  than  one,  having  in  mind  the 
relations  between  the  king  and  his  great  men  at  a  later 
time,  might  suppose.  Usually  there  was  some  previous 
obligation  on  the  part  of  the  king  or  the  expectation  of 
future  service  from  the  grantee.  But  there  may  have 
been  cases  where  there  was  no  relation  between  grantor 
and  grantee  either  before  or  after  the  transaction, 
cases  in  which  the  king  simply  yielded  to  importunity 
or  was  trying  to  bring  better  order  into  some  locality 
by  placing  more  power  in  the  hands  of  one  man. 

As  to  the  second  question,  at  least  two  specific  things 
can  be  named  that  the  grantee  might  receive.  One 
was  the  right,  when  his  men  were  fined  in  the  courts,  to 
take  that  portion  of  the  fine,  the  wite,  that  had  before 
gone  to  the  king.  The  other  was  the  duty,  in  cases 
where  a  whole  hundred  had  been  granted,  of  acting  as 
presiding  officer  in  the  hundred  court.  When,  as  was 
more  often  the  case,  only  part  of  a  hundred  was  granted 
there  was  no  such  immediate  placing  of  bookland  holders 
at  the  head  of  courts;  but  the  taking  of  the  fines  that 
were  imposed  in  the  hundred  court  seems  to  have  been 
a  long  step  towards  it.  Soon  many  holders  of  bookland 
were  presiding  over  courts  in  the  parts  of  hundreds 
that  had  fallen  to  them,  the  old  hundred  court  often 
surviving,  in  a  reduced  condition,  for  those  men  in 
the  hundred  who  were  still  on  folkland.  The  point 
reached  by  this  process  at  the  end  of  the  Anglo-Saxon. 


The  Local  Government  45 

period  varied  greatly  from  hundred  to  hundred.  There 
were  probably  many  hundreds  that  remained  practi- 
cally untouched  by  it.  It  will  be  readily  seen  how 
favourable  was  the  state  of  society  produced  by  com- 
mendation to  the  creation  of  courts  presided  over  by 
great  landholders.  These  courts  must  be  regarded  as 
private  courts,  but  the  people  of  the  time  did  not  so 
think  of  them.  Private  courts  were  new,  and  they 
must  wait  some  time  before  contrasting  ideas  of 
public  and  private  jurisdiction  could  arise.  It  was 
an  institutionally  unconscious  age.  Moreover  men 
were  then  mainly  interested  in  the  financial  side  of 
jurisdiction.  They  were  not  asking  whose  courts 
these  were,  but  who  were  to  get  the  fines  levied  in 
them.  They  did  not  think  that  the  king  had  given 
any  one  a  court,  which  was  thus  changed  from  a  public 
to  a  private  court,  but  that  he  had  given  some  one 
the  right  to  receive  fines  in  a  certain  district. 

It  has  been  said  that  the  grants  of  bookland  were 
at  first  made  only  to  churches.  Had  they  remained 
thus  limited,  they  could  not  have  caused  changes  of 
great  importance.  But  their  extension  was  inevitable, 
for  there  were  nearly  as  many  motives  for  making 
such  grants  to  lay  nobles  as  to  bishops  or  abbots.  A 
new  class  of  nobles  began  to  make  its  appearance  from 
the  time  of  Alfred,  the  class  of  thegns.  The  word 
originally  meant  household  officer  (Latin,  minister), 
and  probably  was  applied  first  to  officers  of  the  king's 
household.  It  rapidly  assumed  a  broader  meaning, 
however,  and  stood  for  a  class  in  society  about  the 
rank  of  the  later  country  gentlemen.  Whatever  its  ori- 
gin, this  class  finally  constituted  a  nobility  of  wealth ; 
a  man  "throve  to  thegnright"  when  he  had  acquired 


46  The  Anglo-Saxon  Period 

a  certain  amount  of  land.  The  rank  was  heritable, 
however.  To  thegns,  who  seem  for  the  most  part  to 
have  been  warriors,  the  kings  made  many  grants  of 
bookland.  Later,  churches  made  them  subgrants  of 
the  same  character  out  of  grants  originally  received 
from  the  king,  and  the  thegns  soon  subgranted  to  other 
thegns  or  even  to  churches.  This  process  went  on 
rapidly  from  the  late  tenth  century,  and  was  uniting 
with  the  other  economic  and  political  conditions,  which 
have  been  noted,  to  produce  a  change  in  society,  feudal 
in  character.  But  Anglo-Saxon  feudalism  did  not  have 
a  chance  to  work  itself  out.  Before  it  was  at  all  com- 
plete, the  Norman  Conquest  came  and  brought  in  new 
forces  and  ideas  that  immediately  dominated. 

A  sketch  has  been  given  of  the  classes  in  society  before 
this  feudalising  process  made  itself  felt 1 ;  it  is  necessary 
here  to  inquire  what  they  were  after  it  had  been  at  work 
for  some  time  and  as  we  take  our  last  look  at  Anglo- 
Saxon  local  conditions.  At  the  bottom,  were  the 
slaves  or  serfs,  as  before;  and  here  there  had  probably 
been  less  change  than  elsewhere.  But  some  change 
there  had  been,  and  it  was  all  in  favour  of  the  serf. 
In  England,  as  on  the  continent,  Christianity  had 
been  doing  something  to  better  the  serf's  condition 
by  persistently  regarding  him  as  a  human  being,  and, 
wherever  opportunity  offered,  by  attempting  to  in- 
crease his  rights.  As  early  as  the  seventh  century, 
the  church  was  insisting,  albeit  with  little  success, 
upon  the  serf's  right  to  the  personal  property  which 
he  had  himself  acquired.  What  has  already  been 
said  about  the  difficulty  the  medieval  mind  found  in 
forming  clear-cut  ideas  of  slavery  of  course  applies 

«  See  above,  pp.  1 6,  17. 


The  Local  Government  47 

here,  as  at  the  earlier  time. *  But  despite  this,  there 
was  probably  a  clearer  line  of  demarcation  between  the 
legally  free  and  unfree  than  anywhere  else  in  society. 
Above  the  serfs,  are  found  the  names  of  classes  and 
subclasses,  the  status  and  relations  of  which  are  very 
hard  to  understand.  All  within  these  classes  techni- 
cally freemen,  their  actual  freedom  varied  infinitely; 
and  this  is  much  the  same  as  to  say  that  there  was 
no  uniformity  in  the  conditions  upon  which  they  held 
and  cultivated  land.  It  was  the  size  and  character  of 
their  holdings  that,  more  than  anything  else,  determined 
their  status.  We  come  first  to  the  small  class  of  boors. 
The  boor  received  land,  cattle,  and  tools  from  his  lord, 
and  to  his  lord  these  reverted  on  his  death.  He  paid 
for  the  use  of  the  land  in  fixed  amounts  of  labour  and 
in  the  products  of  the  soil.  Above  the  boors,  was  the 
very  broad  class  of  villeins.  This  word  had  different 
meanings  at  this  time.2  In  the  use  just  made  of  it, 
it  approached  in  inclusiveness  the  old  English  word 
ceorl,  and  covered  everything  between  the  boors  and  the 
sokemen.  In  the  villein  class,  there  were  three  sub- 
classes: the  villeins  (the  term  used  here  in  a  narrower 
sense),  the  .borderers,  and  the  cotars.  But  these 
terms  were  vague  and  the  names  of  the  subclasses 
varied  much  from  place  to  place.  The  holdings  of 
this  class  varied  greatly  in  size,  the  normal  holding  of 
a  man  of  the  first  subclass  being  about  thirty  acres, 
while  the  cotars  probably  had  little  or  no  land.  The 
villeins  (in  the  broader  sense)  paid  for  the  use  of  their 

»  See  above,  p.  16. 

*  Villein  is  from  the  Latin  villanus,  signifying  one  who  lived  in 
the  villa.  In  England,  this  was,  of  course,  simply  a  borrowing  of 
the  continental  term,  and  does  not  imply  a  continuance  of  the 
Roman  villa  system. 


48  The  Anglo-Saxon  Period 

land  in  labour  and  in  kind,  often  in  money  also.  The 
land  passed  from  father  to  son,  and  the  holder  could 
not  be  evicted  while  all  the  regular  services  were  per- 
formed; but  he  probably  had  little  freedom  to  dispose 
of  any  of  his  land.  As  to  whether  he  had  the  right  to 
quit  the  soil,  it  is  hard  to  make  a  positive  statement, 
for  he  probably  seldom  made  the  attempt.  This  whole 
class  shows  clearly  the  effects  of  the  feudalising  move- 
ments. While  legally  free,  and  distinguished  quite 
clearly  from  the  serfs,  these  villeins,  owing  to  the  hold 
the  lords  had  gotten  upon  their  land  and  services,  and 
the  jurisdiction  which,  in  many  cases,  the  lords  had  over 
them,  were  practically  quite  unfree.  Above  the  villeins, 
was  a  class  of  men  described  by  a  great  variety  of  terms, 
of  which,  probably,  sokemen  was  used  for  the  greatest 
number.  The  term  freemen,  liber i  homines  (used  in 
some  narrow  and  special  sense),  was  also  common. 
Both  terms  were  used  oftener  in  the  north  and  east 
than  elsewhere.  They  indicate  no  sharp  distinction 
from  the  villeins;  probably  in  many  cases,  men  who 
were  called  sokemen  in  one  shire  would  have  been 
called  villeins  in  another.  Taken  as  a  whole,  the  class 
stood  a  little  higher  in  the  scale  of  actual  freedom;  in 
one  way  or  another,  the  sokemen  were  a  little  less  de- 
pendent upon  their  lords.  Some  of  them  were  lords 
themselves,  but  they  were  not,  of  course,  noble.  Above 
the  non-noble  freemen  were  the  nobles,  the  great 
landholders.  These  were  the  thegns,  the  earls,  and 
the  great  ecclesiastics.  It  will  be  seen  that,  with 
fairly  definite  lines  marking  off  the  servile  from  the 
free,  and  the  noble  from  the  non-noble,  there  lay 
between  the  servile  and  the  noble  a  vast  body  of  men 
over  whom  a  change  was  passing,  a  change  that  had 


The  Local  Government  49 

gone  just  far  enough  to  blur  the  old  characteristics, 
but  not  far  enough  to  bring  out  clearly  any  new  ones. 
But  the  class  was  certainly  dividing;  some  may  have 
been  "thriving  to  thegnright,"  but  surely  a  much 
larger  number  was  on  its  way  to  the  class  below. 

It  will  be  noticed  that  in  discussing  these  changes 
nothing  has  been  said  of  the  Danish  settlements  and 
conquests  of  the  ninth,  tenth,  and  eleventh  centuries. 
The  question  naturally  arises  whether  there  were  no 
relations  of  cause  and  effect  between  the  Danish  in- 
vasions and  Anglo-Saxon  feudalism.  There  is  so 
little  direct  evidence  upon  the  subject  that  no  detailed 
statement  can  be  made;  and,  probably,  it  would  be 
easy  to  overstate  the  Danish  influence.  The  Danes, 
who  came  from  the  continent  in  much  the  same  con- 
dition as  to  society  and  institutions  as  their  Anglo- 
Saxon  predecessors,  doubtless  retarded  for  a  time  the 
manorialising  process  in  those  districts  in  which  they 
became  dominant ;  they  tended  to  reproduce  the  earlier 
conditions  of  the  Anglo-Saxon  settlers  in  the  east.  As 
to  the  rest  of  England,  the  coming  of  the  Danes  seems 
to  have  had  just  the  opposite  effect;  it  placed  a  burden 
of  war  and  defence  upon  the  south  and  west,  a  burden 
that  always  depressed  a  peasantry;  and  it  brought  on 
a  period  of  disorder  and  unrest  favourable  to  the  growth 
of  private  powers  at  the  expense  of  the  state. 


SECTION  III 

THE  CENTRAL  GOVERNMENT 

i.  The  King. — Like  most  of  the  other  Germanic 
peoples  that  invaded  the  Roman  empire,  the  Anglo- 
Saxons  entered  Britain  under  the  leadership  of  a  king 
or  kings.1  But  this  is  not  to  ascribe  a  pre-conquest 
origin  to  all  the  petty  royal  lines  that  we  hear  of  in 
England  in  the  seventh  and  eighth  centuries.  The 
necessity  of  leadership,  of  united  action,  of  military 
efficiency,  was  the  great  source  of  kingship  among  these 
early  peoples.  In  the  slow  movement  from  east  to 
west  in  Britain,  there  was  a  great  opportunity  for  dis- 
integration, independent  action,  and  the  formation  of 
new  groups.  In  the  petty  leaders  of  tribes  or  groups  of 
kin,  was  the  stuff  out  of  which  kings  were  made.  The 
word  king  itself  probably  meant  "son  of  the  family."  2 
It  would  not  be  long  before  a  heroic  halo  would  gather 
about  these  primitive  chiefs  and  a  divine  extraction 
be  created  for  them.  They  were  symbols  of  tribal  or 
national  unity  and  consciousness;  they  were  military 
leaders,  and  there  were  very  many  of  them.  One  is  in 

1  For  evidence  of  early  kingship  among  the  Angles,  see  Chadwick, 
The  Origin  of  the  English  Nation,  ch.  vi. 

1  "The  word  cyning  is  in  form  a  patronymic  and  would  seem 
originally  to  have  meant  'son  of  the  family'  (*.  e.,  presumably  the 
royal  family  or  family  of  divine  origin).  If  this  suggestion  is  cor- 
rect it  would  appear  that  cyning  was  originally  not  a  title  of 
authority,  but  rather  equivalent  to  the  modern  word  'prince.'  " — - 
Chadwick,  Studies  on  Anglo-Saxon  Institutions,  p.  30? 

50 


The  Central  Government  51 

constant  danger  of  associating  with  the  word  king 
ideas  that  may  not  belong  to  it  in  the  special  time  and 
place  under  consideration.  The  content  of  the  word 
expanded  greatly  during  the  Anglo-Saxon  period,  as 
the  number  of  the  kings  decreased,  until  the  idea  that 
the  king  should  be  the  civil  head  of  a  centralised  state 
was  clearly  present,  though  far  from  realised.  The 
kingship  of  Edgar  or  Cnute  was  vastly  different  from 
that  of  Ceawlin  or  Ini. 

The  royal  succession  was  regulated  by  that  combina- 
tion of  heredity  and  choice  which  was  characteristic 
of  most  of  the  early  Germanic  kingdoms ;  from  a  family 
that  had,  in  some  way,  become  recognised  as  the  royal 
family,  the  most  eligible  member  was  chosen.  The 
direct  line  of  succession  was  not  generally  departed 
from  unless  there  was  some  good  reason,  like  a  minority, 
for  doing  so.  But  in  certain  instances,  the  designation 
of  the  last  king  seems  to  have  had  some  weight,  and 
it  was  not  unusual  for  a  king  to  associate  his  natural 
successor  with  him.  It  is  particularly  important  not 
to  read  modern  constitutional  ideas  into  the  act  of 
choosing  these  early  kings.  At  no  time  during  the 
Anglo-Saxon  period  was  there  a  body  of  men  that 
was  conscious  of  any  constitutional  right  to  elect  the 
king.  There  might  be  a  somewhat  formal  acceptance, 
by  the  great  men,  of  him  whom  heredity  or  conquest 
had  pointed  out  as  their  lord  and  leader;  and  such 
warriors  and  populace  as  had  naturally  gathered  at  the 
time  and  place  at  which  a  new  sovereign  was  to  be 
proclaimed  might  show  their  approval  by  acclama- 
tion. But  these  men,  great  and  small,  were  acting  in 
a  purely  personal  capacity,  not  as  standing  for  the 
nation.  However,  no  presumptive  king  could  feel  at  all 


52  The  Anglo-Saxon  Period 

sure  of  his  throne  until  he  had  received  this  recognition.  * 
No  detailed  account  can  be  given  of  the  growth  of 
kingship  during  the  Anglo-Saxon  period.  In  the  early 
days,  there  were  many  small,  distinct  peoples  with 
their  petty  kings  or  chiefs.  But  throughout  the  period 
there  was  a  tendency  to  coalesce  into  larger  and  larger 
groups.  The  well-known  seven  kingdoms,  often  called 
the  heptarchy,  represent  one  of  the  more  prolonged 
stages  in  this  process.  These  kingdoms  were  very 
unequal  in  size  and  strength,  and  it  was  inevitable 
that,  sooner  or  later,  the  strong  should  begin  to  lord  it 
over  the  weak,  and  that  finally  one  kingdom  should 
attempt  to  rule  over  all  the  others.  In  the  seventh 
century,  the  Northumbrian  kings  ruled  more  widely 
and  effectively  than  any  before  them;  this  supremacy 
passed  to  Mercia  in  the  eighth  century ;  then  to  Wessex 
early  in  the  ninth  century,  where  it  remained  with  the 
descendants  of  Egbert  until  the  Danish  conquest.  The 
smaller  kingdoms  gradually  lost  their  status  and  Kent, 
Essex  (much  reduced  in  size),  and  Sussex  became 
shires  2 ;  East  Anglia  soon  shared  the  same  fate,  being 
divided  into  two  shires.  Northumbria  and  Mercia 
lost  their  identity  as  kingdoms  during  the  great  Danish 
invasions  and  settlements  of  the  ninth  century,  most 
of  Northumbria  and  half  of  Mercia  becoming  the 
Danelaw. 

It  was  during  the  period  :>f  struggle  among  the  seven 
kingdoms  that  Christianity  spread  throughout  England; 
and  Christianity  had  much,  to  add  to  the  primitive 
Teutonic  conception  of  king,  as  well  ideas  derived 
from  the  Old  Testament  as  those  of  a  strictly  Christian 

>  SeeChadwick,  Studies  " n  AngL>-Saxon  Institutions,  pp.  357-366 
*  See  above,  p.  19. 


The  Central  Government  53 

origin.  Kingship  was  strengthened  and  made  more 
grand  and  inviolable;  for  the  missionaries  and  other 
clergy  understood,  from  the  start,  that  the  central 
power  was  their  natural  ally  against  the  forces  of  dis- 
order and  division.  The  consecration  of  the  king,  which 
included  the  anointing  and  the  coronation,  became  a  re- 
ligious ceremony,  almost  a  sacrament,  performed  by 
the  clergy.  Although  the  crown  existed  in  heathen 
times,  yet  there  was  nothing  that  could  properly  be 
called  coronation;  the  rude  custom  of  lifting  the 
accepted  king  upon  the  shields  of  the  assembled 
warriors  differed  very  widely  from  the  solemn  and 
dignified  procedure  after  the  church  had  invested 
kingship  with  its  sanction  and  its  glamour.  Probably 
the  Anglo-Saxon  king  owed  less  to  this  religious 
sanction  and  to  any  semi-religious  or  priestly  character 
which  he  might  derive  from  the  consecration  than  was 
the  case  in  many  countries,  France  for  instance.  He 
always  retained  much  of  his  old  character  of  the 
accepted  lord  or  war-chief  of  his  people.  But  the  con- 
tribution of  Christianity  was  substantial  and  the  con- 
tent of  the  word  king  was  beginning  to  broaden. 

With  the  Christian  religion,  there  came  into  England 
some  Roman  ideas  of  government,  probably  in  not  very 
distinct  form  or  in  very  large  numbers.  But  in  Ethel- 
bert  of  Kent's  crude  codification  of  the  law  we  see 
beginning  to  work  the  idea  that  a  central  power  should 
be  something  more  than  a  military  leadership.  And  the 
codification  itself,  which  had  a  notable  effect  upon  the 
legislative  work  of  his  successors,  was  certainly  the  re- 
sult of  Roman  influence.  Several  specific  instances 
are  known  in  later  Anglo-Saxon  history  where  con- 
tinental and  ultimately  Roman  influences  powerfully 


54  The  Anglo-Saxon  Period 

affected  the  action  and  ideals  of  kings.  In  the  long- 
continued,  and  apparently  fruitless,  attempts,  repeated 
in  almost  the  same  form  generation  after  generation,  to 
bring  criminals  to  justice  and  bolster  up  the  weaknesses 
of  the  local  courts,  we  see  a  somewhat  blind  strug- 
gling of  kingship  towards  a  higher  realisation  of  itself. 
Some  promptings  and  suggestions  were  certainly 
received  from  Rome;  and  it  was  in  this  general  and 
vague  way,  rather  than  through  the  more  tangible 
gifts  of  laws  or  institutions,  that  Rome  touched  the 
Anglo-Saxon  government.  The  idea  that  they  could  be 
something  greater  reached  the  Anglo-Saxon  kings 
from  the  continent,  but  they  employed  only  crude, 
Teutonic  methods  in  striving  to  realise  it.  The  large 
differences  between  the  late  Anglo-Saxon  kings  and  the 
early  may,  then,  be  thus  summarised:  the  late  kings 
ruled  over  much  larger  and  more  diversified  populations 
and  had  to  deal  with  new  and  complex  problems  in 
government — they  were  no  longer  petty  kings;  they 
had  become  Christian,  and  were  strengthened  and 
exalted  by  the  church's  conception  of  monarchy;  they 
regarded  themselves  as  civil  rulers  who  were  bound 
to  keep  order  and  promote  their  people's  welfare. 1 

The  powers  and  privileges  of  a  typical  sovereign 
of  the  house  of  Alfred  were  very  strictly  limited  by  the 
customs  of  the  kingdom.  But  it  cannot  be  said  that 
the  function  of  enforcing  this  limitation  was  vested  in 

1  The  fact  should  not  be  overlooked  that  much  of  the  activity 
in  making  the  local  courts  more  efficient  had  a  selfish,  revenue 
purpose  behind  it.  But  most  governmental  progress  has  lain 
in  the  operation  of  intelligent  selfishness.  However,  a  society  that 
could  train  the  heathen  Cnute  into  the  kind  of  king  he  came  to 
be  was  not  without  its  ideals.  It  also  had  not  been  without  some 
substantial  attainments  in  centralised  government. 


The  Central  Government  55 

any  clearly  defined  constitutional  way  in  the  king's 
council.  This  council,  known  as  the  witan, 1  an  assem- 
bly of  the  great  and  wise  men  of  the  realm,  certainly 
exercised,  at  times,  much  power.  The  part  that  such 
men  played  in  the  choice  of  king  has  already  been 
noticed,  and  we  know  that  the  king's  continuance 
in  office  often  depended  upon  their  favour.  In  the 
performance  of  any  important  act,  their  sanction 
conferred  an  added  authority.  But  the  relations  of 
king  and  witan  were  never  made  clear,  and  hence 
great  variations  in  practice  were  possible;  when  the 
king  was  weak,  the  witan  seemed  to  do  all  the  govern- 
ing ;  when  the  king  was  strong,  its  share  in  government 
appeared  insignificant.  On  his  accession,  the  king 
had  to  take  a  notable  oath.  It  was  a  threefold  promise : 
first,  that  the  Christian  church  should  be  kept  in  peace ; 
second,  that  all  sorts  of  injustice  and  violence  should  be 
forbidden  all  men;  third,  that,  in  his  judgments,  he 
would  exercise  justice  and  mercy  that  he  might  hope 
for  the  same  from  a  just  and  merciful  God.2  The 
Anglo-Saxon  king  was  no  irresponsible  potentate ;  the 
people  of  the  time  had  no  conception  of  such  a  ruler. 
Their  sovereign  must  not  violate  the  customs  and 
traditions  of  the  country,  and,  if  he  did  not,  there 
seems  to  have  been  little  to  prevent  his  attaining 
much  actual  power;  if  he  did,  the  people  resisted  him 
irregularly  and  personally  rather  than  constitutionally. 
As  regards  his  property,  the  king  was,  in  many 
ways,  situated  like  a  private  individual;  but  probably 

1  See  below,  pp.  57-61. 

2  This   old   Anglo-Saxon   coronation   oath   suggested,  after  the 
Norman  Conquest,  the  form  in  which  the  first  great  charter  of 
liberties  was  cast.     See  below,  p.  256. 


56  The  Anglo-Saxon  Period 

no  private  individual  ever  had  as  much.  There  was  no 
land  belonging  to  the  state  as  contrasted  with  that 
which  the  king  held  personally,  just  as  there  was  no 
distinction  between  the  public  treasury  and  the  king's 
private  purse.  There  was  not  governing  enough 
done  at  the  centre  to  make  an  elaborate  and  expensive 
machinery  necessary;  all  was  primitive,  personal,  and 
on  a  small  scale.  The  king's  revenue  consisted,  in 
the  first  place,  of  what  was  paid  him  by  the  tenants 
on  his  land,  just  as  in  the  case  of  any  landlord ;  in  the 
second  place,  of  his  judicial  income,  the  penal  fines 
imposed  in  the  local  courts;  in  the  third  place,  of 
purveyance.  All  medieval  kings  travelled  much,  for 
much  of  their  income  was  paid  them  in  kind  and 
might  have  to  be  collected  and  used  on  the  spot.  In 
their  endless  progresses  through  the  kingdom,  the 
kings  were  conveyed  and  maintained  largely  at  the 
expense  of  the  districts  through  which  they  passed. 
Besides  these  more  important  sources  of  revenue, 
there  were  many  of  a  minor  character,  such  as  the 
proceeds  from  mines  and  salt-works,  wrecks,  treasure- 
trove,  various  special  tolls,  etc. 

It  will  be  noticed  that  no  mention  has  been  made  of 
taxation.  In  its  usual  and  specific  sense,  a  tax  is  "a 
charge  or  burden  laid  upon  persons  or  property  for  the 
support  of  a  government."  There  was  something  of 
this,  no  doubt,  in  purveyance,  but  necessarily  only 
in  an  irregular  and  obscure  way.  There  was  only  one 
true  tax  in  the  Anglo-Saxon  period,  the  Danegeld. 
This  was  a  land  tax  and  was  levied  for  the  first  time 
in  991 ;  but  throughout  the  reign  of  Ethelred  II.,  it 
was  a  tax,  in  the  strictest  sense  of  the  word,  only 
from  the  point  of  view  of  incidence,  assessment,  and 


The  Central  Government  57 

collection.  It  was  not  a  regular  levy  to  pay  the  ex- 
penses of  government,  but  purely  a  matter  of  emergency 
with  nothing  of  the  sort  preceding  it  and  with  no 
thought  of  its  continuance  in  any  form.  But  Cnute 
did  continue  it  and  began  its  transformation  into  a 
regular  charge  for  the  support  of  government.  It  was 
only  upon  its  revival  by  William  the  Conqueror,  how- 
ever, after  an  interruption  during  the  reign  of  Edward, 
that  this  transformation  was  at  all  complete.  It  must 
be  understood,  moreover,  that,  neither  in  the  Anglo- 
Saxon  time  nor  for  long  after,  did  the  people  of 
England  grasp  the  idea  that  upon  them  rested  a  di- 
rect financial  obligation  to  support  their  government. 
The  king  had  his  revenue;  let  him  live  on  that;  let 
him  "live  of  his  own,"  to  use  the  common  expression 
of  a  later  time.  To  the  end  of  the  Anglo-Saxon 
period,  central  government  was  so  personal  and  so  slight 
that  it  was  never  thought  of  as  something  in  which 
all  the  people  had  an  abiding  and  vital  concern. 

2.  The  Witan. — The  Anglo-Saxon  kings  governed 
in  conjunction  with  a  body  of  men  known  as  the  witan, 
the  wise  men. 1  The  origin  of  this  assembly  cannot  be 
traced  with  entire  certainty.  Tacitus  states  that  the 
German  tribes  which  he  knew  had  two  assemblies: 
one  was  a  general  meeting  of  the  armed  freemen  of  the 
tribe  and  dealt  with  the  more  important  matters;  the 
other  was  a  meeting  of  the  chief  men  of  the  tribe,  and 
determined  lesser  things  and  discussed  in  advance  the 
more  important  concerns,  the  final  decision  of  which 
lay  with  the  larger  body.  Some  writers,  who  have 

>  Witenagemot  (witena,  genitive  plural  of  witan,  plus  gemot, 
assembly)  "does  not  appear  to  have  been  an  official  term." — 
P.  and  M.  i.,  40,  note  4. 


5  8  The  Anglo-Saxon  Period 

been  zealous  to  prove  that  the  Anglo-Saxon  kingdoms 
were  never  without  democratic,  deliberative  assemblies, 
have  regarded  the  witan  as  a  decreased  and  degenerate 
survival  of  the  larger  of  the  old  assemblies,  arguing 
that,  whereas  only  the  great  men  ordinarily  attended  the 
meetings,  the  whole  body  of  freemen  continued  to  have 
the  right  to  do  so;  and  adducing  as  proof  of  this,  in- 
stances in  which  large  concourses  of  people  were  spoken 
of  as  being  present.  This  proof  is  unsatisfactory  since 
such  instances  were  rare,  and,  what  is  of  more  im- 
portance, were  occasions  upon  which  the  populace  would 
naturally  gather,  such  as  the  acceptance  of  a  new  king, 
the  issuing  of  some  great  edict  of  war  or  peace,  or  the 
like.  It  is  not  necessary  to  explain  the  gathering 
of  a  crowd  at  such  times  by  a  theoretical  right  to  attend 
the  meetings  of  the  witan;  and  there  is  not  the  least 
evidence  that  these  crowds  became,  in  any  sense,  part 
of  the  witan  or  engaged  in  any  deliberations.  Further- 
more there  is  no  proof  that  the  primitive  Anglo- 
Saxons  ever  had  a  national  assembly  either  in  England 
or  upon  the  continent.  But  it  is  certain  that  the  early 
kings  had  councils  consisting  of  members  of  the  royal 
family,  officials,  and  great  warriors,  bodies  that  corre- 
spond to  the  smaller  assemblies  described  by  Tacitus. 
From  such  councils,  without  doubt,  the  later  witan  was 
descended. 

The  make-up  of  the  witan  cannot  be  clearly  defined. 
The  name  itself  is  vague  and  indicates  a  shifting  person- 
nel rather  than  one  based  upon  any  strict  theory. 
The  king  might  determine  largely  who  should  attend. 
The  witan  ordinarily  included  the  royal  family,  the 
great  lay  and  ecclesiastical  officials,  such  as  ealdormen. 
bishops,  and  great  abbots,  and  men  whose  wealth, 


The  Central  Government  59 

influence,  or  attainments  made  the  king  desirous  of 
their  presence  or  afraid  to  do  without  it.  As  a  general 
thing,  the  presence  of  a  large  number  of  men  who  held 
no  official  position  was  indicative  of  the  king's  power. 
Most  of  those  whose  influence  was  irksome  or  threat- 
ening to  the  king  would  be  in  an  official  or  semi-official 
position. 1 

The  functions  of  the  witan  were  various  and  undif- 
ferentiated,  but,  as  has  been  said,  the  character  of  the 
king  largely  determined  its  influence  in  government 
at  any  given  time.  In  the  very  late  Anglo-Saxon 
period,  its  authority  was  decreasing.  The  power 
accumulated  in  the  hands  of  the  two  or  three  great 
families  of  earls  undoubtedly  affected  it.  One  should 
be  especially  careful  not  to  ascribe  to  the  witan  any 
of  the  traits  of  a  modern  parliament.  The  witan  was 
not  a  representative  body,  and  was  not  standing  for 
the  people's  rights  as  against  the  king's  power  or  in 
any  other  capacity.  In  most  that  it  did,  it  acted  in  con- 
junction and  harmony  with  the  king;  and,  as  far  as  it 
stood  for  anything  opposed  to  the  king,  it  would  be 
primarily  for  the  aristocratic  interests  of  its  members. 
Only  when,  in  the  case  of  some  very  broad  abuse  or 
despotism,  the  interests  of  all  classes  for  a  time  coin- 
cided, may  it  have  acted  in  the  people's  interest.  The 
witan  did  kinds  of  work  that  would  now  be  termed 
executive,  legislative,  and  judicial;  but  there  was  then 
no  consciousness  of  such  division  and  hence  no  attempt 
to  classify  business.  Its  sessions  were  not  long  and, 
in  the  early  days,  there  seems  to  have  been  little 
regularity  in  its  time  of  meeting;  later  it  met,  with 

1  For  a  detailed  discussion  of  the  composition  of  the  witan, 
see  Chadwick,  Studies  on  Anglo-Saxon  Institutions,  ch.  ix. 


60  The  Anglo-Saxon  Period 

some  uniformity,  three  times  a  year,  on  the  three 
great  festivals  of  Christmas,  Easter,  and  Whit- 
suntide. It  was  very  seldom  that  over  a  hundred 
men  attended. 

Of  the  legislative  and  judicial  work  of  king  and 
witan,  a  word  further  must  be  said.  While  most  of  the 
law  of  the  country  was  a  local,  unwritten  law,  uncon- 
sciously made  by  the  people  and  administered  by 
them  in  the  local  courts,  it  is  worthy  of  notice  that 
the  king  and  witan  at  times  did  some  important 
legislating.  They  passed  laws,  called  dooms,  which, 
of  course,  were  written,  and  which  applied  to  all  parts 
of  the  country  over  which  the  king  ruled.  This  law- 
making  began  with  the  dooms  of  Ethelbert  of  Kent 
and  Ini  of  Wessex,  which  have  come  down  to  us,  and 
those  of  Offa  of  Mercia,  which  have  been  lost.  There 
was  then  an  interval  of  nearly  a  century  in  which 
no  written  laws  were  made.  Legislation  was,  in  a 
sense,  refounded  and  made  a  normal  function  of  the 
central  government  by  Alfred.  A  very  important 
series  of  laws  was  put  forth  by  the  powerful  descendants 
of  Alfred  in  the  tenth  century.  But  the  highest  point 
in  Anglo-Saxon  legislation  was  reached  under  the 
foreigner,  Cnute,  who  issued  a  code  of  laws  of  a  very 
advanced  character  for  the  time.  Law-making  lapsed 
in  the  reign  of  Edward  the  Confessor,  but  was  again 
revived  after  the  Norman  Conquest.  These  dooms 
were  much  like  the  capitularies  of  the  Carolingian 
sovereigns,  but  were  not  contemporaneous;  they  be- 
gan just  as  the  Prankish  legislation  was  declining,  and 
continued  during  a  time  when,  on  the  continent,  no 
laws  were  being  made  by  a  central  power — an  evi- 
dence of  the  comparative  compactness  of  the  English 


The  Central  Government  61 

territory  and  power  of  the  English  rulers.1  King 
and  witan  also  constituted  a  high  court  of  justice. 
This  was  not  a  court  of  appeals,  but  a  court  of  first 
instance  for  cases  of  great  importance  and  for  the 
few  that,  for  various  reasons,  had  failed  to  receive 
a  judgment  in  the  local  courts.  But  despite  these 
rather  high-sounding  functions,  it  must  be  remembered 
that  the  quantity  of  the  work  was  small,  that  the 
central  power  came  into  little  actual  contact  with  the 
people,  the  real  governing  of  whom  lay  in  that  nexus 
of  local  popular,  and  growing  private,  powers,  an 
account  of  which  has  been  attempted.2 

It  has  been  incidentally  shown  that  the  central 
government  was  not  in  a  healthy  condition  at  the 
close  of  the  Anglo-Saxon  period.  Economic  forces 
were  creating  a  strong  landed  nobility.  As  the  king- 
dom grew  larger  and  the  demands  upon  government 
greater,  kings  were  constrained  to  make  grants  of 
immunity  and  semi-jurisdictional  authority  and  utilise 
the  strength  and  position  of  private  individuals  for 
police  purposes.  Thus  the  higher  nobility  was  coming 
into  the  possession  of  a  dangerously  large  public 
power.  The  old  official  class  of  ealdormen  was  necessar- 
ily affected  by  these  changes.  The  almost  inevitable 
medieval  transformation  was  taking  place — the  local 
official  was  becoming  the  local  potentate.  This 
was  helped  on  by  the  king  whose  reign  is  often  taken 
as  marking  the  highest  point  reached  by  the  Anglo- 
Saxon  central  government.  Edgar  wras  confident  of 
his  own  ability  to  control  any  element  in  the  realm; 
and,  seeing  inefficiency  of  executive  authority  every. 

>  P.  and  M.  i.,  18-21. 

*  See  above,  Pt.  I.,  §  II.,  2,  3,  4. 


62  The  Anglo-Saxon  Period 

where  and  having,  for  his  time,  high  ideals  of  govern- 
ment, he  sought  by  placing  more  power  in  the  hands 
of  the  earls,  to  obtain  his  end  by  the  easy  but  danger- 
ous method  of  utilising  private  ambition  and  local 
family  pride.  He  sowed  the  wind  and  his  successors 
reaped  the  whirlwind.  Under  the  weak  Ethelred  II., 
this  policy  resulted  in  a  marked  decentralisation;  each 
earl  regulated  the  affairs  of  his  locality  to  suit  himself,  all 
concerted  action  was  destroyed,  and  a  situation  was  cre- 
ated that  made  possible  the  conquest  of  England  by  the 
Danes.  Under  the  strong  Cnute,  the  earls  were  kept 
under  control,  but  the  system  of  local  powers,  as 
established  by  Edgar,  was  not  rooted  out;  and  under 
Edward  the  Confessor  and  Harold,  powTer  was  con- 
centrated in  the  hands  of  a  smaller  and  smaller  num- 
ber of  families.  Since  the  Danish  invasion  of  Alfred's 
time,  a  racial  distinction  had  existed  between  northern 
and  southern  England.  This  division  was  now  in- 
tensified by  coinciding  roughly  with  the  territories 
controlled  by  great  families  of  earls.  The  existence  of 
a  north  and  south  England  and  the  final  bitter  jealousy 
between  the  houses  of  Leofric  and  Godwin  constituted 
the  principal  negative  cause  of  the  Norman  Conquest. 
Apparently  too  great  a  strain  had  been  placed  upon  the 
Anglo-Saxon  system  of  government ;  that  which  served 
in  Northumbria,  Mercia,  or  even  Wessex  was  found 
wanting  when  applied  to  all  England,  especially  in 
time  of  war  and  rapidly  changing  economic  conditions. 
England  seemed  destined  to  pass  through  a  stage  of 
feudal  disintegration,  resembling  that  which  befell 
the  Prankish  state  in  the  ninth  century,  when  she 
was  rescued  by  the  extraordinary  results  of  the 
Norman  Conquest. 


SECTION  IV 

THE  ANGLO-SAXON  CHURCH 

THE  Anglo-Saxon  church  was  in  peculiarly  close 
relations  with  the  civil  government,  both  central 
and  local.  It  is  for  the  purpose  of  accounting  for 
and  explaining  these  relations  that  its  history  is 
touched  upon  here.  The  kingdoms  of  the  heptarchy 
were  Christianised  in  the  seventh  century  by  mission- 
aries, largely  monastic,  coming  either  from  the  con- 
tinent or  from  one  of  the  kingdoms  that  had  already 
accepted  the  new  religion.  It  was  the  practice  of 
these  missionaries  to  gain  at  first,  if  possible,  the 
adhesion  of  the  king  and  the  great  men,  trusting  that 
the  people,  in  large  masses,  would  accept,  with  little 
question,  the  religion  of  their  leaders.  Such  accept- 
ances en  masse  were  quite  common,  and,  in  general, 
the  Anglo-Saxons  adopted  Christianity  readily.  Where 
any  long  resistance  was  made,  it  was  usually  on  political 
grounds,  the  prejudice  naturally  felt  against  the  religion 
of  an  enemy,  whether  that  enemy  were  the  native 
British  or  some  neighbouring  Anglo-Saxon  kingdom. 
Christianity  was  not  at  first  preached,  to  any  great 
extent,  to  the  lower  classes;  it  was,  from  the  start, 
the  religion  of  those  in  authority,  whether  in  the  central 
government  or  in  the  local  courts.  But  as  time 
passed,  it  worked  its  way  downwards  and  touched 
larger  and  larger  numbers  of  people. 

There  was  little  organisation  in  the  newly  established 

63 


64  The  Anglo-Saxon  Period 

church;  in  each  little  kingdom  or  subkingdom,  at 
some  natural  centre,  perhaps  a  favourite  royal  residence, 
there  would  be  some  sort  of  church  establishment  with 
a  bishop  at  its  head,  and  with  a  heterogeneous  group 
of  clergy  usually  living  under  some  monastic  rule. 
From  this  point  of  light,  maintained  under  royal 
protection,  missionaries  were  sent  out  into  the  uncon- 
verted parts  of  the  kingdom.  It  was  a  system  suited 
only  to  a  half-Christianised  country;  it  was  on  a 
purely  missionary  basis. 

The  change  from  this  primitive  organisation  to 
one  suited  to  a  fully  established  and  permanent  church 
was  largely  the  work  of  one  man.  This  was  Theodore 
of  Tarsus,  who  was  archbishop  of  Canterbury  from 
668  to  690.  With  but  a  few  important  later  changes, 
the  church  remained  what  he  made  it  up  to  the  time 
of  the  Danish  invasions  and  conquests  late  in  the  ninth 
century.  His  greatest  work  was  the  creation  of  the 
dioceses.  The  diocese,  the  territory  over  which  a 
bishop  had  control,  was  the  fundamental  division 
in  the  Roman  church  polity.  It  is  sometimes  said 
that  Theodore  divided  existing  dioceses  into  smaller 
ones;  but,  as  has  been  shown,  the  existing  small 
kingdoms,  considered  as  fields  for  missionary  effort, 
were  about  the  only  ecclesiastical  divisions  before  his 
time.  Even  granting  that  early  churchmen  some- 
times took  account  of  the  smaller,  tribal  divisions 
in  organising  their  work,  it  would  be  doing  violence 
to  later  ideas  to  call  these  dioceses  in  more  than  one 
or  two  instances. l  It  had  been  the  purpose  of  Pope 

>  The  dioceses  of  Canterbury  and  Rochester  correspond  to  the 
ancient  divisions  of  east  and  west  Kent.  In  very  ear'"  times,  thes<- 
territories  often  had  different  kings. 


The  Church  65 

Gregory  L,  when  he  planned  the  Christianising  of 
England,  to  have  two  co-ordinate  archbishoprics 
established,  one  in  the  south  and  the  other  in  the 
north.  This  was  not  carried  out,  however,  and 
Theodore  made  his  organisation  upon  the  basis  of  one 
metropolitan  church,  that  at  Canterbury.  It  seems 
to  have  been  owing  to  the  influence  of  Bede  in  behalf 
of  northern  England  that  the  bishop  of  York  was 
made  archbishop  early  in  the  eighth  century.1  For 
a  short  time  in  the  last  half  of  the  same  century,  owing 
to  the  political  supremacy  of  Mercia,  Litchfield  was 
recognised  as  an  archbishopric.  But  the  normal 
arrangement,  from  the  time  of  Bede  to  the  disruption 
of  the  church  in  the  north  by  the  invading  Danes, 
was  a  division  into  two  archbishoprics  and  seventeen 
bishoprics,  the  latter  often  coinciding  with  old  tribal 
or  national  boundaries.  The  bishops  of  these  dioceses 
had  their  residences,  for  the  most  part,  in  small  places 
instead  of  in  the  large  centres  of  population,  as  was  the 
practice  upon  the  continent.  The  English  bishops, 
in  a  very  real  sense,  ruled  over  districts  or  peoples  and 
were  far  less  bound  to  locality  than  were  the  continen- 
tal bishops.  The  division  of  the  dioceses  into  parishes 
has  been  ascribed  by  tradition  to  Archbishop  Theodore ; 
but  the  parishes  grew  gradually  and  naturally,  and 
were  not  created  by  any  superior  authority.  The 
parish  was  usually  merely  the  township  regarded 
ecclesiastically,  the  region  under  the  care  of  a  single 
priest.  In  the  wilder  and  more  thinly  settled  part 
of  the  country,  a  parish  often  included  several  town- 

>A  bitter  rivalry  often  existed  between  the  two  archbishops, 
leading  sometimes  to  the  most  undignified  quarrels.  The  question 
of  precedence  was  not  satisfactorily  decided  in  Anglo-Saxon  times. 

5 


66  The  Anglo-Saxon  Period 

ships   or  hamlets,    and,   in   some   cases,  has    always 
continued  to  do  so. 

In  the  little  that  can  be  said  of  the  government 
of  the  early  church,  we  note  especially  how  it  was 
related  to  the  state.  General  church  assemblies 
or  synods,  held  primarily  for  legislative  purposes,  were 
either  national  or  limited  to  one  of  the  archiepiscopal 
provinces.  The  meetings  were  very  irregular,  both 
as  to  time  and  place.  They  were  always  attended  by 
the  bishops  and  by  many  of  the  abbots ;  but  besides  these 
ecclesiastics,  a  king  or  kings  and  a  varying  number 
of  ealdormen  or  other  laymen  of  importance  attended. 
Just  as  churchmen  attended  the  great  lay  assemblies,  so 
laymen  attended  these  synods ;  and,  although  we  do  not 
know  the  details  of  their  procedure,  there  is  reason  to 
believe  that,  in  both  cases,  the  element  that  might 
at  first  seem  foreign  and  unnecessary  was  regarded  as 
integral  and  important.  Church  and  state  worked 
together  and  in  harmony,  for  they  had  the  same 
end  in  view,  the  maintaining  of  an  orderly  unity  in 
the  country.  Theoretically  the  English  church,  like  the 
other  churches  of  western  Europe,  was  under  the 
control  of  the  pope,  but  in  practice,  that  control  or 
any  papal  interference  amounted  to  very  little.  It 
must  also  be  remembered  that  this  church  was  just 
as  national  and  as  much  a  unit  when  England  consisted 
of  seven  separate  and  hostile  kingdoms  as  after  some 
permanent  unity  had  been  attained  under  the  rule 
of  the  West  Saxon  kings.  England  was  regarded  as 
an  ecclesiastical  unit  from  the  start;  considerations  of 
geography  and  race  made  it  natural.  But  it  was  vastly 
important  that  it  should  have  been  so,  for  it  was 
through  the  organisation  of  the  church  that  English- 


The  Church  67 

men  from  all  parts  of  the  country  were  first  lead  to 
think  of  themselves  as  forming  one  nation.  The  great 
political  service  of  the  Anglo-Saxon  church  was  in  thus 
furnishing  an  ideal  and  example  of  unity. 

In  judicial  matters,  the  union  of  church  and  state 
was  even  closer.  The  clergy  were  amenable  to  the 
hundred  and  shire  courts  in  all  matters  of  which  these 
courts  took  cognisance;  they  were  under  their  juris- 
diction to  the  same  extent  that  laymen  were.  Hence 
the  propriety  and  necessity  of  the  presence  of  bishop 
and  priest.  In  criminal  cases,  a  special  procedure 
was  necessary  in  the  case  of  clerks,  and  the  bishop 
was  in  the  court,  "in  the  relation  of  lord  and  patron," 
to  declare  authoritatively  what  this  procedure  was. 
But  the  bishop  was  also  regarded  as  a  learned  and 
necessary  member  of  the  court  with  respect  to  its 
jurisdiction  over  laymen,  especially  in  matters  touching 
morals.  There  were  certain  distinctly  clerical  offences, 
breaches  of  ecclesiastical  regulations,  heresy,  and 
the  like,  that  "would  not  come  before  the  popular 
courts,  for  they  were  not  breaches  of  the  secular  law; 
and  they  were  not  crimes  for  which  the  penitential 
jurisdiction  alone  was  sufficient.  For  such,  then,  it  is 
probable  that  the  bishops  had  domestic  tribunals  not 
differing  in  kind  from  the  ecclesiastical  courts  of  later 
ages."1  In  its  penitential  system,  the  church  had 
a  power  of  a  semi-judicial  character,  which  exercised 
a  restraining  influence,  in  matters  of  morals,  over  both 
clergy  and  laity. 2 

Monasticism  was  an  important  institution  in  England, 

1  Stubbs,  Constitutional  History  of  England,  §  87. 

2  It  should  be  remembered  also  that  bishops  or  abbots  who  had 
received  grants  of  bookland  had,   over  the  people  on   the  land, 
that  kind  of  jurisdiction,  that  has  been  described  above,  pp.  42-45. 


68  The  Anglo-Saxon  Period 

as  elsewhere  in  the  early  church.  As  we  have  seen, 
England  was  Christianised  largely  by  monks,  and,  in 
very  early  times,  monastic  establishments  were  the 
chief  centres  of  Christian  influence.  The  seventh  and 
eighth  centuries  were  the  glorious  period  of  Anglo- 
Saxon  monasticism.  The  houses  by  no  means  con- 
formed to  one  rule,  and  the  rule  of  St.  Benedict,  which 
was  becoming  universal  upon  the  continent,  was 
quite  exceptional.  In  fact,  there  was  from  the  begin- 
ning too  much  irregularity  in  the  English  system 
to  ensure  a  long  period  of  purity  and  usefulness. 
But  in  the  first  flush  of  enthusiasm,  when  many  great 
men  and  women  of  the  nobility  aided  in  founding 
monasteries  and  actually  entered  and  managed  them 
(a  source  of  corruption  in  the  course  of  time),  there 
was  a  short  period  during  which  the  good  far  out- 
weighed the  evil.  At  this  time,  indeed,  the  whole 
Anglo-Saxon  church,  and  especially  that  of  Northum- 
berland, stood  for  greater  sanctity  and  learning  than 
was  to  be  found  elsewhere  in  Christendom,  with  the 
possible  exception  of  Ireland. 

The  Danish  conquests  of  the  ninth  century  threw 
large  parts  of  England  back  into  heathenism.  Four 
or  five  dioceses  ceased  to  exist,  and  several  were,  for 
some  time,  in  a  precarious  and  unsettled  condition. 
The  province  of  York  of  course  suffered  most;  and, 
even  when  the  newly  settled  regions  had  been  re- 
claimed to  Christianity,  the  northern  archbishopric 
stood  aloof  from  the  southern,  and  there  was  really 
less  unity  in  the  church  than  there  had  been  in  the 
earlier  centuries.  This  was  simply  a  reflection  in  the 
church  of  the  political  separation  of  north  and  south 
which  the  Danish  invasions  and  settlements  served 


The  Church  69 

to  initiate.1  In  the  south,  church  and  state  were 
brought  into  even  closer  relations  than  before;  witan 
and  ecclesiastical  synod  were  so  remarkably  alike  in 
make-up  and  business  that  it  is  hard  to  distinguish 
between  them.  In  this  later  time,  are  found  the  first 
instances  of  archbishops  of  Canterbury  playing  the 
part  of  statesmen  and  of  advisers  and  intimate  friends 
of  kings,  something  which  became  more  common  after 
the  Norman  Conquest.  Spiritually  the  church  de- 
clined after  the  Danish  invasions.  It  lacked  recuper- 
ative power.  The  monastic  abuses  became  greater, 
and  the  efforts  of  Dunstan  and  other  great  churchmen 
of  his  time  to  bring  into  England  the  principles  of  the 
Cluniac  reform  bore  no  permanent  fruit.  England 
had  been  sending  missionaries  and  scholars  to  the 
continent,  and  had  been  regarded  as  a  leader  in  re- 
ligion and  learning;  now  the  relations  were  exactly 
reversed.  Cut  off  so  completely  from  papal  leadership 
and  influence  at  a  time  when  much  of  value  might 
have  been  gained  from  them,  the  English  church,  on 
the  eve  of  the  Norman  Conquest,  presented  a  peculiar 
and  provincial  aspect.  Owing  to  its  isolation  and  the 
ravages  of  the  heathen  Danes,  it  had  dropped  behind 
in  the  general  forward  movement  of  Christendom. 
An  intimate  connection  with  the  state,  rural  bishops 
living  in  close  contact  with  the  people,  an  irregular 
and  decadent  monasticism,  an  undignified  rivalry 
between  its  two  archbishops,  great  independence  of 
the  pope,  some  antiquity  and  barbarity  of  custom  and 
ceremony — these  were  the  leading  characteristics  of 
the  pre-conquest  church. 
1  See  above,  p.  62. 


PART  II 

The  Norman  Conquest — its  more 

immediate  Results 

i 066- i 100 


SECTION  I 

NORMAN   INSTITUTIONS   AND   IDEAS   AT  THE  TIME    OF 
THE   CONQUEST 

IT  is  the  judgment  of  most  scholars  that  the  Norman 
Conquest  had  a  more  profound  influence  upon 
English  history  than  any  other  single  event.  Its  effect 
upon  the  constitution  was  perhaps  greater  than  upon 
any  other  phase  of  the  national  life.  A  particularly 
careful  study  of  this  event  is  therefore  essential  if 
one  would  understand  the  later  institutional  growth. 
As  has  been  already  stated,  we  have,  up  to  this  point, 
been  treating  only  a  portion  of  the  material  that  went 
to  the  making  of  the  English  government ;  now  there 
came  from  the  continent  the  last  considerable  gift 
of  institutions  and  ideas.  The  method  of  studying 
this  conquest  should  resemble,  in  general  features, 
that  followed  in  studying  the  Anglo-Saxon  conquest. 1 
Having  already  seen  something  of  the  public  life 
of  the  country  to  be  invaded,  we  turn  now  to  a  very 
brief  examination  of  eleventh  century  Normandy, 
after  which  will  follow  the  more  vital  consideration 

1  See  above,  p.  7.  Although  the  Norman  Conquest  came  six 
centuries  later  than  that  which  gave  to  the  English  the  island  of 
Britain,  and  we  have  of  course  much  fuller  evidence  of  all  sorts 
respecting  it,  there  are  nevertheless  some  problems  connected  with 
it  that  remain  wholly  or  partially  unsolved.  But  there  is  a  much 
better  prospect  of  the  satisfactory  solution  of  these  than  of  many 
of  the  older  dnes. 

73 


74  The  Norman  Conquest 

of  the  coming  together  of  Norman  and  Anglo-Saxon 
institutions. i 

The  circumstances  of  Normandy's  origin  and  her  uni- 
formly able  and  masterful  dukes  had  given  her  an 
independence  and  power  possessed  by  no  other  part 
of  France  north  of  the  Loire  river.  One  may  expect 
therefore  to  find  there  some  exceptional  conditions 
and  institutions.  As  in  all  the  other  parts  of  France, 
feudalism  prevailed  in  Normandy.  But  this  state- 
ment alone  tells  very  little;  many  questions  immedi- 
ately present  themselves.  The  feudal  practices  of  one 
place  may  differ  greatly  from  those  of  another,  and 
the  feudalism  of  one  time  differs  from  that  of  every 
other  time;  yet  the  use  of  the  same  term  implies  that 
there  must  be  certain  fundamental  principles  that 

1  Our  knowledge  of  Norman  institutions  is  very  incomplete. 
We  know  much  of  what  may  be  called  the  external  history  of  the 
duchy,  of  its  relations  to  the  French  kings  and  other  neighbouring 
powers,  and  of  its  general  reputation  and  characteristics.  But 
Normandy  possessed  not  a  vestige  of  written  law  at  this  time,  and 
there  has  remained  little  evidence  of  any  sort  that  throws  light 
upon  its  internal  organisation.  But  we  are  not  simply  concerned 
with  Norman  institutions.  It  must  be  remembered  that  the 
Normans  were  not  an  isolated  people,  having  a  knowledge  merely 
of  the  institutions  inside  their  own  duchy.  They  constituted  a 
vassal  state  of  France  and  were  acquainted  with  all  the  varying 
feudal  relations  by  which  the  numberless  big  and  little  powers  which 
made  up  France  were  held  together,  and  with  the  peculiar  position 
of  one  of  those  feudal  powers  that  held  the  royal  title.  Moreover, 
it  is  to  be  noticed  that  the  Normans  did  not  go  to  England  simply 
to  reproduce  their  own  duchy  there;  their  duke  was  to  become 
king,  and  the  Norman  nobles  were  to  be  the  vassals  of  a  king, 
hoping  to  gain  all  the  independence  and  power  that  that  seemed 
to  them  to  imply.  It  is  not  without  some  knowledge  of  the  insti- 
tutions in  the  north  of  France  in  general,  as  well  as  in  Normandy, 
that  we  can  get  any  clear  notion  of  what  the  Normans  carried 
with  them  to  England.  For  the  best  short  account  of  Norman 
institutions  and  law,  see  P.  and  M.  i.,  book  i.,  ch.  iii. 


Norman  Institutions  and  Ideas         75 

remain  stable.  Feudalism,  in.  a  broad,  loose  sense  of 
the  word,  there  has  been  in  various  parts  of  the  world 
and  at  various  times;  but  the  feudal  system,  historic 
feudalism,  that  feudalism  which  is  usually  meant  when 
the  word  is  used  without  adjective  or  explanation,  is 
that  which  originated  in  France  in  the  early  middle 
ages  and  spread  thence  in  western  Europe.  This 
feudalism  differs  from  every  other  in  that  it  was  based 
upon  the  fusion  of  specific  Roman  and  German  insti- 
tutions, which,  obviously,  can  have  been  exactly 
paralleled  at  no  other  place  or  time. 1  Institutions 
more  or  less  analogous,  however,  have  existed  in  all 
feudal  systems,  since  all  have  arisen  from  the  same 
general  condition  and  to  meet  the  same  general  needs. 
The  feudalism  of  Normandy  was  of  course  a  type 
of  French  feudalism,  but  the  system  seems  to  have 
been  in  an  earlier  stage  of  development  there  than  in 
other  parts  of  northern  France  at  the  time  of  the 
Conquest ;  some  features  of  the  system  that  had  become 
quite  hardened  elsewhere  were  still  in  a  doubtful 
and  fluid  condition  in  Normandy.2  In  this  respect, 
Norman  institutions  were  like  the  Anglo-Saxon  in- 
stitutions with  which  they  were  about  to  come  in  con- 
tact; but,  as  has  been  shown,  Anglo-Saxon  feudalism 

1  It  is  impossible  in  this  work  to  enter  into  a  discussion  of  the 
vast  subject  of  European  feudalism.     But  much  will  be  said  of  it 
incidentally  and  considerable  knowledge  of  it  taken  for  granted. 
For  the   origin   of  feudalism  see   Adams,   Civilisation  during  the 
Middle  Ages,  ch.  ix. ;  for  the  developed  feudal   institutions,   see 
Seignobos,    The  Feudal  Regime,  and  Emerton,  Medieval  Europe, 
ch.  xiv. 

2  But  it  has  recently  been  shown  that  the  duke's  vassals  probably 
owed  him  specific  numbers  of  knight's  services  in  the  eleventh 
century.       Haskins,  Knight  Service  in  Normandy  in  the  Eleventh 
Century,  English  Historical  Review  xxii.,  636-649. 


76  The  Norman  Conquest 

was  not  derived  from  the  continent ;  it  was  of  indigenous 
growth,  and  lacked  those  features  that  the  continental 
system  drew  from  Rome.  A  clear  perception  of  these 
facts  is  most  needful  in  beginning  the  study  of  the 
Norman  Conquest.  To  summarise  them:  in  England, 
there  had  been  forming  a  feudalism  of  purely  Germanic 
origin,  which,  at  the  date  of  the  Conquest,  was  only 
half  grown  and  peculiarly  vague  and  complex;  in 
Normandy,  there  was  an  undeveloped  type  of  con- 
tinental feudalism;  but  the  Normans  knew  thoroughly 
the  north  French  feudalism  of  their  time.  * 

The  substance  of  what  is  known  of  Norman  society 
and  government  may  be  quickly  told.  The  peasantry 
was  in  a  better  condition  than  elsewhere  in  northern 
France;  there  were  few  slaves.  Among  the  upper 
classes,  most  land  tenures  were  tending  to  conform 
to  the  feudal  type;  the  vassal  held  land  of  his  lord 
(implying  that,  as  between  the  two,  the  superior  claim 
lay  with  the  latter)  and  by  a  definite  contract  of 
honourable  service.  The  service  was  generally  military. 
It  is  doubtful  whether  this  system  had  existed  long 
enough  or  generally  enough  to  give  rise  to  a  hard  and 
fast  theory  that  all  free  tenures  must  be  of  this  type. 
Of  the  extent  of  private  jurisdiction,  little  is  known; 
but  it  certainly  existed.  Part  of  it  was  the  jurisdiction 
of  the  landlord  over  his  peasantry,  and  part  feudal 
jurisdiction,  that  of  the  lord  over  his  vassals.  All 
private  courts  in  Normandy  were  limited  by  the 
unusual  number  of  cases  reserved  by  the  duke  for 

•The  Conquest,  which  was  a  wonderfully  many-sided  event, 
resulted  in  much  more  than  can  be  explained  by  simply  conceiving 
of  one  feudal  system  as  coming  in  and  displacing  another;  but  this 
is  the  feature  of  the  event  concerning  which  one  is  most  likelv 
to  go  astray. 


Norman  Institutions  and  Ideas          77 

his  own  consideration;  all  crimes,  for  instance, 
punishable  by  death  were  tried  at  the  duke's  court. 
In  Normandy,  there  was  more  corporal  punishment, 
and  consequently  less  composition  by  fine,  than 
in  England.  There  was  therefore  a  more  rigorous 
repression  of  crime,  and,  in  this  respect,  Normandy 
must  be  regarded  as  more  advanced.  The  Truce  of 
God  existed  in  Normandy  for  the  same  reason  that 
it  did  elsewhere  on  the  continent,  the  mitigation  of 
private  warfare;  but  the  stern  rule  of  the  dukes  ren- 
dered it  less  necessary  than  in  most  other  places. 

The  duke,  in  governing,  took  counsel  with  a  body 
of  men  who  formed  his  curia  or  court  and  who  were 
usually  known  as  optimates  or  proceres.  These  great 
men  were  ordinarily  his  immediate  vassals,  and  an 
important  question  respecting  the  curia  is  whether 
or  not  it  was  simply  the  duke's  feudal  court  of  tenants- 
in-chief.  It  was,  practically  that,  and  would,  doubt- 
less, soon  have  become  that  in  theory;  it  was  a  council 
of  an  older  sort,  resembling  the  Anglo-Saxon  witan; 
but  it  had,  by  this  time,  become  quite  thoroughly 
feudalised. 1  The  Norman  church,  in  the  separation 
of  its  organisation  from  that  of  the  state  and  in  its 
close  relations  with  Rome,  differed  from  the  Anglo- 
Saxon  church  as  all  continental  churches  did.  As 
in  England,  however,  the  lay  power  was  in  thorough 
sympathy  with  the  church  and  perhaps  exercised  a 
greater  control  over  it. 

'"What  we  know  is  that  when  the  time  for  the  conquest  of 
England  is  approaching,  the  duke  consults  or  professes  to  consult 
the  grert  men  of  his  realm,  lay  and  spiritual,  the  optimates,  the 
proceres  of  Normandy.  He  holds  a  court;  we  dare  hardly  as  yet 
call  it  a  court  of  his  tenants-in-chief ;  but  it  is  an  assembly  of  the 
great  men,  and  the  great  men  are  his  vassals." — P.  and  M.  i,  73. 


SECTION  II 

NORMAN     AND     ANGLO-SAXON     INSTITUTIONS    COME 
TOGETHER 

'"THE  Norman  Conquest,  considered  from  any  point 
1  of  view,  is  a  difficult  subject.  Institutionally 
considered,  it  is,  perhaps,  especially  so.  The  initial 
difficulty  lies  in  the  vagueness  and  intricacy  of  the 
previous  institutions  of  both  Anglo-Saxons  and  Nor- 
mans, but  there  were  in  the  Conquest  itself  many 
sources  of  institutional  influence  and  development. 
The  time  and  circumstances  of  the  undertaking  and 
the  personalities  and  doings  of  the  Conqueror  and  his 
principal  followers,  as  well  of  his  sons  have  to  be 
taken  carefully  into  account.  At  a  time  when  there 
was  little  that  was  hard  and  fast  about  institutions 
and  when  the  upheaval  of  an  invasion  gave  oppor- 
tunity for  change,  very  small  things  could  mightily 
affect  the  future.  It  is,  of  course,  out  of  place  here 
to  give  a  narrative  account  of  what  took  place.  It 
is  the  purpose  rather  to  examine  the  conditions  of 
government  and  society  after  the  Conquest  had 
wrought  its  first  great  change.  There  is  some  difficulty 
in  determining  at  what  precise  point  to  make  this 
survey,  since  the  Conquest  so  profoundly  affected 
all  later  English  history.  There  has  seemed,  however, 
to  be  a  propriety  in  regarding  the  reigns  of  the  first 
two  Norman  kings  as  containing  what  may  be  most 

78 


Norman  and  Anglo-Saxon  Institutions    79 

properly  considered  immediate  results.  In  the  reign 
of  Henry  I.,  a  development  began  which  was  intro- 
ductory to  all  the  institutional  growth  of  the  twelfth 
century;  hence  this  reign,  notwithstanding  the  formid- 
able hiatus  of  the  anarchy  under  Stephen,  connects 
itself  with  what  followed  rather  than  with  what  went 
before.  We  shall,  therefore,  be  mainly  concerned  here 
with  the  latter  part  of  the  Conqueror's  reign  and  with 
the  reign  of  William  II.  ;  but  the  consideration  of 
some  matters  will  make  it  necessary  to  trespass  occa- 
sionally upon  a  later  time.  As  in  the  Anglo-Saxon 
period,  the  distinction  between  the  local  and  central 
governments  must  be  made  prominent,  the  first  three 
subdivisions  of  the  subject  dealing  with  the  classes 
of  men  and  their  relations  and  activities  in  the  local 
institutions,  and  the  last  three  with  the  new  central 
power  and  the  church. 

i.  The  Classes  of  Men  and  the  Introduction  of  Feu- 
dalism.— It  was  no  purpose  of  the  Conqueror  to  make 
changes  in  English  law  and  custom  beyond  what  were 
necessary  in  the  creation  of  a  powerful  and  effective 
monarchy.  He  intended  to  rule  in  the  fullest  sense  of 
the  word,  but  he  had  none  of  that  pettiness  of  purpose 
which  would  lead  him  to  arbitrarily  make  changes  for 
the  mere  pleasure  of  lording  it  over  a  conquered  people. 
Moreover,  he  had  no  idea  that  it  was  necessary  to 
make  any  general  substitution  of  Norman  or  French 
institutions  for  Anglo-Saxon.  He  was  to  rule  as  an 
English  king,  and  he  believed  that  there  were  many 
good  features  in  the  English  system,  and,  doubtless,  felt 
the  expediency  of  leaving  undisturbed  many  things, 
which,  while  they  had  nothing  in  particular  to  recom- 


8o  The  Norman  Conquest 

mend  them,  might  occasion  discontent  and  heartburning 
in  the  removal.  This,  as  nearly  as  it  can  be  interpreted, 
was  the  Conqueror's  initial  attitude;  but  as  years 
passed,  more  change  and  severity  were  necessary  than 
he  at  first  supposed,  and  many  things  came  to  pass  that 
could  not  have  been  foreseen. 

In  violent  and  sudden  changes,  the  lower  classes 
of  men  and  the  smaller  local  institutions  are  the  ones 
least  affected  at  first.  We  have  reason  to  believe 
that,  in  the  early  years  after  the  Conquest,  the  Anglo- 
Saxon  serf,  villein,  and  sokeman  lived  on  very  little 
disturbed  in  their  relative  positions.  The  large  tenures, 
those  of  their  lords  or  lords'  lords,  might  be  changing 
hands  and  changing  in  character  very  fast  without  imme- 
diately affecting  them.  But  a  change  did  reach  them,  at 
just  what  time  it  is  impossible  to  say,  the  beginning  of 
which  must  be  noticed  here.  The  status  of  the  lower 
classes,  that  strange  complexity  of  nomenclature  and 
condition  where  freedom  faded  imperceptibly  into 
unfreedom,  was  beyond  the  comprehension  of  the 
new  Norman  lords  of  the  soil.  Perhaps  they  did  not 
feel  that  it  was  worth  while  to  try  to  comprehend  it, 
or  they  may  have  been  largely  unconscious  of  it. 
Vague  as  were  many  things  in  continental  status, 
the  line  between  the  servile  classes  and  those  above 
them  was  usually  quite  distinct.  Moreover,  when 
the  Norman  mind  acted  freely,  it  was  likely  to  produce 
what  was  clear-cut;  and  the  Norman  lawyers  of  the 
twelfth  century  had  many  of  the  principles  of  the 
Roman  law  to  help  them.  A  process  began  in  England, 
which,  in  the  course  of  time,  drew  a  tolerably  clear 
line  between  freedom  and  unfreedom.  The  large, 
inchoate,  Anglo-Saxon  class  was  being  cut  in  two; 


Norman  and  Anglo-Saxon  Institutions    81 

a  part,  and  that  probably  much  the  smaller,  was  to  pass 
into  a  better  recognised  condition  of  freedom,  while 
more  were  to  become,  by  a  gradual  depression,  a  part 
of  the  servile  class.  The  process  was  not  complete 
for  a  century  or  more  after  the  time  we  are  now  con- 
sidering, but  it  is  possible  at  this  point  to  see  the 
beginnings  of  future,  well-known  classes,  whose  char- 
acter fundamentally  affected  the  English  constitution. 
The  unfree  class  came  to  be  known  after  the  Conquest 
as  the  villein  class,  and  was  made  up  of  the  pre-con- 
quest  slaves  whose  status  had  been  raised,  and  the 
pre-conquest  villeins,  whose  status  had  been  lowered. 
It  was  much  larger  than  the  servile  class  before  the 
Conquest,  but  not  so  abjectly  servile. 

That  this  simplifying  process  greatly  improved  the 
legal  position  of  the  serf  can  hardly  be  doubted.  We  need 
not  indeed  suppose  that  the  theow  or  servus  of  earlier 
times  had  been  subjected  to  a  rigorously  consistent  con- 
ception of  slavery.  Still  in  the  main  he  had  been  rightless, 
a  chattel;  and  we  may  be  sure  that  his  rightlessness  had 
not  been  the  merely  relative  rightlessness  of  later  days, 
free  against  all  but  his  lord.  Indeed  we  may  say  that  in 
the  course  of  the  twelfth  century  slavery  was  abolished. 
That  on  the  other  hand  the  villani  suffered  in  the  process 
is  very  likely.  Certainly  they  suffered  in  name.  A  few 
of  them,  notably  those  on  the  king's  manors  may  have 
fallen  on  the  right  side  of  the  Roman  dilemma  "aut  liberi 
aut  servi, "  and  as  free  men  holding  by  unfree  tenure  may 
have  become  even  more  distinctly  free  than  they  were 
before ;  but  most  of  them  fell  on  the  wrong  side ;  they  got  a 
bad  name,  and  were  brought  within  the  range  of  maxims 
which  described  the  English  theow  or  the  Roman  slave. 
Probably  we  ought  not  to  impute  to  the  lawyers  of  this  age 
any  conscious  desire  to  raise  the  serf  or  to  debase  the  villein. 
6 


82  The  Norman  Conquest 

The  great  motive  force  which  directs  their  doings  in 
this  as  in  other  instances  is  a  desire  for  the  utmost  generality 
and  simplicity.  .  .  .  They  reck  little  of  the  interests 
of  any  classes,  high  or  low;  but  the  interests  of  the  state,  of 
peace  and  order  and  royal  justice  are  ever  before  them. 1 

The  class,  thus  formed,  bore  some  peculiar  character- 
istics; its  members  had  a  distinctly  servile  side  and  a 
distinctly  free  side.  The  former  was  shown  in  their 
relations  to  their  lords,  in  which  were  present  the 
usual  servile  disabilities.  The  villein  whose  daughter 
married  outside  the  manor  must  pay  the  merchet, 
or  marrying  fine,  to  his  lord;  and  the  latter  had  many 
petty  and  vexatious  rights  over  the  property  of  his 
villein,  which  proves,  however,  that  the  villein  did 
have  personal  property  that  was  recognised  as  his. 
The  villein  was  bound  to  the  soil  and  to  certain  services, 
payments  in  labour  and  in  kind,  which  were  determined 
by  the  custom  of  the  manor  and  which  varied  in  their 
amount  and  certainty  in  individual  cases.  To  his 
land  and  to  his  services,  the  villein  could  be  strictly 
held;  if  he  fled,  his  lord  had  the  right  to  bring  him 
back  by  force.  On  the  other  hand,  to  all  persons 
except  his  lord,  the  villein  presented  his  free  side; 
as  against  them,  his  right  to  have  his  property  and 
personal  safety  protected  was  practically  the  same 
as  that  of  the  freeholder  upon  the  same  manor. 
As  the  system  of  king's  courts  developed,  its  attitude 
towards  the  villein  became  a  matter  of  great  import- 
ance as  affecting  his  status.  In  a  word,  and  by  way  of 
anticipation,  it  may  be  stated  here  that  the  villein 
could  be  a  presenter  of  criminals  in  a  royal  court,  and, 

'P.  and  M.  i.,  430,  431.  For  the  depressing  effect  of  post- 
conquest  taxation  upon  the  middle  classes,  see  below,  p.  105. 

I 


Norman  and  Anglo-Saxon  Institutions    83 

by  the  early  thirteenth  century,  stood  on  a  practical 
equality  with  the  freeman  in  such  court  in  all  matters 
relating  to  its  criminal  jurisdiction.  But  it  was  not 
for  him  a  civil  court;  he  could  bring  no  action  there. 
The  men  above  the  villeins,  the  non-noble  freemen, 
are  known  usually  as  freeholders.  As  the  mass  of  Anglo- 
Saxon  tenures  became  somewhat  simplified  after  the 
Conquest,  this  class  held  normally  by  one  of  the 
socage  tenures,  tenure  in  free  socage,  the  ancestor 
of  the  modern  freehold,  being  the  most  important. l 
The  normal  manor  contained  a  number  of  freeholders 
in  addition  to  its  villein  tenants;  but  a  freeholder 
might  have  a  manor  with  freehold  and  villein  tenants 
of  his  own.  The  services  of  the  freeholder  were  much 
the  same  as  those  of  the  villein,  but  possessed  a  kind 
of  defmiteness  that  left  him  who  rendered  them  less  at 
his  lord's  disposal.  The  freeholder  lacked  also  the 
ascription  to  the  soil  and  the  more  personal  incidents 
of  servitude.  But  any  general  description  is  likely 
to  make  the  distinction  between  the  freehold  and  villein 
classes  appear  clearer  than  it  actually  was.  The 
more  the  investigator  deals  with  details,  the  more 
difficult  he  finds  it  to  obtain  a  sure  touchstone 
of  demarcation;  even  such  obviously  servile  marks 
as  the  payment  of  the  merchet  become  vague  and 
unsatisfactory  as  guides.  What  at  first  seems  a  less 
clear-cut  test,  definiteness  of  service,  has  been  found, 
in  the  long  run,  the  best.  It  is  true  that  the  villein's 

1  Free  socage  was  the  most  important  of  a  group  of  Anglo-Saxon 
free,  non-noble  tenures.  The  origin  of  its  name  is  obscure.  After 
the  Conquest,  free  socage  was  more  widely  used  and  often  by 
people  of  higher  rank  than  in  Anglo-Saxon  times.  See  Maitland, 
Domesday  Book  and  Beyond,  pp.  66  ff.  This  tenure  was  commonly 
known  as  fee  farm  from  the  Conquest  to  Edward  I. 


84  The  Norman  Conquest 

service  was  often  fixed  as  to  its  sum  total,  but  he 
did  not  know  from  day  to  day  what  his  lord  would  have 
him  do;  he  was  at  his  lord's  disposal. 

A  matter  which  greatly  complicated  the  relations 
of  all  classes  was  what  has  been  termed  the  divorce  of 
tenure  and  personal  status.  At  a  time  when  ideas 
of  land  ownership  were  very  vague  and  several  indi- 
viduals of  different  status  ordinarily  had  rights  in  the 
same  piece  of  land  at  the  same  time,  it  was  impossible 
for  the  land  to  take  its  character  from  its  tenants; 
they  were  too  numerous,  heterogeneous,  and  shifting. 
Hence  it  became  the  practice  to  identify  a  certain  piece 
of  land  with  certain  services;  it  always  owed  villein 
services  or  it  always  owed  freehold  services,  etc.; 

.  .  .  service  due  from  each  particular  piece  of  land  came  to  be 
everything,  and  the  actual  status  of  the  holder  of  the  land 
a  matter  of  comparative  indifference .  It  is  scarcely  pos- 
sible to  overrate  the  effect  of  this  manner  of  holding  land 
in  breaking  up  the  social  system  of  the  middle  ages.  Great 
nobles  thought  it  no  degradation  to  hold  land  on  socage 
tenure  of  mesne  lords  far  below  them  in  the  social  scale,  or 
even  to  undertake  the  more  precarious  liabilities  of  the 
unfree  villein  holder. 1 

In  general,  there  seems  to  have  been  no  limit  to  the 
number  of  different  tenures  by  which  the  same  indi- 
vidual might  at  once  hold  different  pieces  of  land. 
Where  there  was  divergence  between  tenure  and  status, 
it  was  usually  the  man  of  higher  status  holding  the  lower 
tenure,  and  the  ordinary  freeman  might  be  in  danger 
of  losing  his  free  status  by  too  long  identification  with 
villein  tenure.  But  notwithstanding  the  various  sources 
of  confusion  among  classes,  a  great  body  of  the  unfree, 

•  Medley,  English  Constitutional  History,  pp.  34,  35. 


Norman  and  Anglo-Saxon  Institutions   85 

the  tenants  in  villeinage,  stands  out  clearly  enough 
from  the  freemen;  and  of  the  latter,  there  was  a  large 
class  of  holders  by  socage  tenure,  the  personal  status 
of  most  of  whom  was  non-noble  and  free.  The  existence 
after  the  Conquest,  of  a  substantial  non-noble,  free 
class  was  a  very  important  condition  of  later  constitu- 
tional development. 1 

In  turning  to  the  consideration  of  the  nobility, 
we  come  upon  an  important  and  immediate  result  of 
the  Conquest.  Owing  to  the  initial  resistance  at 
Hastings,  which  the  Conqueror  was  pleased  to  consider 
treasonable,  there  was  a  very  extensive  confiscation 
of  land  in  the  south.  The  protracted  resistance  in 
the  midlands  and  north  brought  equally  sweeping 
confiscations  there.  Hence  almost  all  the  land  in 
England  either  changed  hands  or  was  regranted  on 
new  terms  to  the  old  holders.  It  was  through  this 
process  that  the  principles  of  continental  feudalism 
entered  England.  The  land  was  granted  upon  feudal 
terms  by  no  special  design,  but  because  the  Conqueror 
was  acquainted  with  no  other.  It  was  now  held  of 
the  king,  that  is,  the  proprietorship  lay  with  him  and 
not  with  the  grantee,  and  it  was  held  by  definite 
c6ntract  for  some  honourable  service,  ordinarily  military 
service.  Then  the  men  who  held  directly  of  the  king, 
his  tenants-in-chief,  might  make  subgrants  of  land  to 
others,  who  would  hold  of  them  upon  the  same  con- 
ditions. But  all  the  tenures  in  England  did  not 
become  feudal.  When  new  grants  were  made  to 
nobles,  they  were  invariably  feudal,  but  the  lower 
holdings  within  these  grants  remained  as  before. 
However,  the  feudal  principle  that  all  land  must  be 

1  See  below,  pp.  306,  307;  311,  312 


86  The  Norman  Conquest 

held  cf  someone  began  to  affect  the  non-feudal  tenures. 
The  socage  tenures,  while  remaining  throughout  their 
later  history  unchanged  in  essentials,  acquired  after 
the  Conquest  a  feudal  tinge  that  gave  them  for  a  time 
a  somewhat  anomalous  character. l 

The  unit  of  military  service  was  that  of  the  single 
knight,  the  warrior  fully  armed  according  to  medieval 
fashion.  Hence  the  unit  of  military  tenure  was  a 
holding  of  such  value  as  to  support  a  knight.  When 
the  new  feudal  tenures  were  created,  they  were  reck- 
oned in  terms  of  knights'  services.  The  Conqueror 
might  grant  to  one  of  his  followers  an  extent  of  terri- 
tory from  which  forty  knights  were  required,  to  another, 
a  holding  furnishing  twenty  or  thirty  knights,  and 
so  on.  The  number  of  knights'  services  were  almost 
always  reckoned  in  multiples  of  five.  Although  there 
was,  of  course,  a  relation  between  the  amount  of 
land  granted  and  the  number  of  knights  required 
from  it,  yet  no  very  accurate  measuring  unit  seems  to 
have  been  used;  the  Conqueror  probably  fixed  the 
numbers  very  arbitrarily.  In  many  cases,  certainly, 
the  number  of  knights  required  was  much  below  what 
the  land  might  have  furnished.  Comparatively  few 
tenants-in-chief  owed  over  fifty  or  sixty  knights,  and 
the  sum  of  all  was  about  five  thousand.  It  has  been 
contended  by  some  writers  that  this  system  of  knight 

1  This  feudal  tinge  appears  in  the  universality  with  which  all  lands 
were  held  of  some  lord,  all  rendered  some  kind  of  service,  and  all 
tended  to  assume  some  of  the  more  characteristic  feudal  dues,  such 
as  the  regular  aids  and  the  relief.  But  they  lacked  the  essential 
feudal  characteristic  of  being  held  by  an  honourable  service.  Free 
socage  tenure  became  increasingly  popular,  being  a  free  tenure, 
with  a  definite,  non-military  service  and  usually  lacking  the  more 
vexatious  feudal  incidents,  as  wardship  and  marriage.  Burgage. 
the  characteristic  tenure  in  boroughs,  was  a  sort  of  "town  socage." 


Norman  and  Anglo-Saxon  Institutions   87 

service  was  simply  a  continuation,  under  another 
name,  of  what  is  often  called  the  thegnage  of  Anglo- 
Saxon  times.  There  was,  however,  an  essential  differ- 
ence, which  is  an  illustration  of  the  fact,  already  insisted 
upon,  that  England  before  the  Conquest  did  not  possess 
the  principles  of  continental  feudalism.  What  had 
been  growing  in  England  was  a  more  or  less  complete 
territorialising  of  military  service.  The  old  militia  idea 
that  every  freeman  could  be  called  upon  to  render 
military  service  to  the  state  no  longer  existed  in  its 
purity;  the  attention  and  emphasis  had  been  shifting 
from  the  individual  to  the  land.  A  certain  amount  of 
service  had,  from  time  immemorial,  been  rendered 
from  a  certain  extent  of  territory;  hence,  except  in 
cases  of  extraordinary  emergency,  just  so  many  men 
and  no  more  were  required  from  it. l  There  was  even 
appearing  a  general  rule  that  five  hides  was  the  normal 
amount  of  land  from  which  to  require  one  fully  armed 
warrior.  It  is,  moreover,  likely  that  the  large  land- 
holders were,  to  some  extent,  held  responsible  for  the 
number  of  men  their  lands  were  to  furnish.  But 
this  practice  was  growing,  as  we  have  seen  so  much 
else  in  the  Anglo-Saxon  system,  without  any  theory 
or  underlying  principle  to  suit  the  facts;  indeed,  the 
facts  were,  at  that  time,  so  varied  that  they  can  be 
made  to  square  with  no  principle  whatever.  They  had 
broken  away  from  an  old  principle  or  principles,  but 
had  not  as  yet  reached  uniformity  enough  to  give 
rise  to  a  new  one;  there  had  not  been  in  England,  as 
on  the  continent,  any  pre-existing  principles  derived 

•This  territorialising  of  military  service  is  precisely  analogous 
to  the  process  through  which  the  duty  of  attending  the  shire  court 
was  passing.  See  above,  pp.  ai,  22. 


88  The  Norman  Conquest 

from  an  older  civilisation  that  might  serve  as  hints 
and  guiding  forces  in  the  yet  complex  and  imperfect 
facts.  The  thing  that  had  been  lacking  and  that  came 
in  at  the  Conquest  was  the  idea  of  a  definite  contract 
understood  as  existing  between  lord  and  man.  In  the 
grants  made  by  the  Conqueror  to  his  followers  or  to 
the  restored  and  pardoned  Saxon  nobles,  such  con- 
tracts were  made,  and  the  land  was  recognized  as 
coming  from  him  and  its  proprietorship  as  remaining 
with  him.  This  system  of  knight  service  remained 
for  a  century  after  1066  the  chief  means  of  recruiting  an 
army.  The  Norman  kings,  however,  did  not  abandon 
the  old  right  of  the  Anglo-Saxon  kings  to  enforce  a  gen- 
eral levy  of  all  freemen  in  case  of  great  necessity;  and 
in  the  survival  of  this  right,  the  military  system  of 
England  differed  from  that  of  the  continent,  where 
military  service  had  been  entirely  appropriated  by 
the  feudal  idea. 

It  has  been  often  represented  that,  when  William 
brought  feudalism  into  England,  he  consciously  modi- 
fied it  in  several  ways  in  the  interest  of  his  own  power. 
This  has  been  found  to  be  an  inadequate  explanation  of 
the  facts.  In  the  first  place,  there  can  be  ascribed 
to  William  no  thought  of  introducing  a  new  system; 
it  was  not  a  time  of  institutional  self-consciousness. 
In  the  second  place,  several  things,  necessarily  resulting 
from  the  Conquest  itself,  had  an  effect  upon  the  feudal 
holdings  and  made  them  differ  from  the  continental 
type.  The  most  prominent  of  these  was  the  scattering 
of  the  large  fiefs,  which  has  often  been  ascribed  to  a 
deliberate  plan  of  William  to  make  it  difficult  for  his 
great  nobles  to  concentrate  their  forces.  But  it  was 
an  inevitable  result  of  the  piecemeal  conquest  of  the 


Norman  and  Anglo-Saxon  Institutions    89 

country;  William  conquered  first  the  south-east  and, 
shortly  after,  the  south-west,  and  must  hasten  to 
reward  his  clamorous  followers  in  those  regions; 
then  came  the  series  of  uprisings  in  the  north,  the 
confiscation  of  most  of  the  land,  and  the  consequent 
new  grants  there;  and,  last  of  all,  the  country  about 
Chester  and  the  Welsh  border  was  subdued,  and  many 
of  the  Norman  nobles,  who  had  begun  to  get  their 
allotments  in  the  south-east  four  or  five  years  before, 
received  their  final  holdings  in  the  regions  last  con- 
quered. Moreover,  when  a  Norman  was,  in  any  part 
of  England,  put  into  the  place  of  a  rebellious  Saxon 
lord,  he  was  likely  to  find  the  lands  of  his  predecessor 
very  irregular  and  scattered;  for  the  majority  of  the 
Anglo-Saxon  nobles  had  never  gone  far  in  rounding  out 
and  perfecting  their  holdings. 

A  second  effect  of  the  Conquest  was  a  sharper  de- 
fining of  feudal  obligation  and  incident.  This  re- 
sulted from  the  rapid  creation  of  so  many  new  holdings. 
On  the  continent,  where  the  feudal  system  of  land- 
holding  had  grown  step  by  step  through  centuries,  all 
sorts  of  anomalies  and  relics  of  earlier  forms  of  tenure 
remained;  in  conquered  England,  where  things  were 
being  made  over  new  and  the  king  was  strong,  there 
was  a  tendency  to  push  the  feudal  theory  to  its  logical 
conclusion  and  work  out  details.  In  the  reign  of 
William  II.,  there  was  a  deliberate  attempt  to  exploit 
the  feudal  relations  in  the  interest  of  the  king,  which 
resulted  in  carefully  elaborating  and  defining  the 
feudal  obligations.  Erelong,  as  far  as  feudal  law  was 
concerned,  especially  feudal  land-law,  England  was 
leading  Europe.  It  may  be  remarked  in  conclusion 
that  the  Salisbury  oath,  which  is  likely  to  strike  one  as 


QO  The  Norman  Conquest 

a  marked  assumption  of  power  upon  the  Conqueror's 
part,  was  not  a  new  kind  of  oath.  There  is  evidence  that 
such  an  oath  had  been  required  at  other  times  during  his 
reign,  and  he  and  his  ancestors  seem  to  have  habitually 
required  the  same  in  Normandy.  It  established  in  Eng- 
land the  important  principle  that  every  man's  oath  to 
his  lord  was  taken  saving  his  allegiance  to  his  king. l 

2.     The    Local  Courts,   Communal  and   Private. — The 

Anglo-Saxon  local  judicial  system  remained  for 
some  time  after  the  Conquest  little  changed.  Its 
usefulness  was  probably  recognised  by  the  new 
king,  who  certainly  had  nothing  worthy  to  replace  it. 
The  private  jurisdictions,  which  have  been  noted  as 
seriously  cutting  into  the  hundred  courts,  were  now,  in 
most  cases,  the  jurisdictions  of  Norman  instead  of  Saxon 
lords,  and  the  old  conception  that  they  were  still  in  some 
sort  public  courts  with  changed  presiding  officers  proba- 
bly soon  passed  away.  But  notwithstanding  the  sub- 
stantial continuance  of  the  old  system,  certain  important 
changes  did  begin  and  certain  new  conceptions 
inevitably  arose  in  the  early  Norman  period.2 

The  dutv  of  attending  the  shire  court  became  more 
and  more  attached  to  certain  holdings  of  land. 3  This 
change  was  of  very  slow  and  obscure  growth  and  re- 
sulted in  many  anomalies.  The  largest  holdings  did 

1  Though    William    I.    did    not  consciously  modify   the  feudal 
system,  it  must  not  be  supposed  that  he  was  neglectful  of  his  own 
interests;  but  he  cared  for  these  in  an  eleventh  century  manner 
and  not  in  the  manner  which  some  modern  writers  have  ascribed 
to  him.     See  below,  pp.  100-102. 

2  These  are  to  be  briefly  outlined  here,  and  this  consideration 
will  serve  as  a  starting  point  for  the  consecutive  study  of  the 
creation  of  the  English  judicial  system  in  Part  III.,  §1. 

» Maitland,  The  Suitors  of  the  County  Court,  English  Historical 


Norman  and  Anglo-Saxon  Institutions    91 

not  always  owe  suit  of  court,  and  the  actual  make-up  of 
the  court  under  this  system  must  have  been  a  curious 
jumble  of  high  and  low,  rich  and  poor.  Soon  after  the 
Conquest,  the  earl  and  the  bishop  ceased  to  attend 
the  court,  leaving  the  sheriff  as  the  only  presiding 
or  constituting  officer — a  change  that  was  to  funda- 
mentally affect  the  court's  future  history.  Earl  began 
to  be  a  title  of  nobility  instead  of  signifying  an  office. 
This  was  a  result  of  preceding  Norman  history,  during 
which  the  control  of  the  dukes  had  been  so  complete 
that  no  great  official  power  had  been  allowed  in  the 
hands  of  a  local  nobility;  the  counts,  who,  in  some 
respects  had  corresponded  to  the  Anglo-Saxon  earls, 
were  few  in  number,  practically  confined  to  the  ducal 
family,  and  with  no  such  relation  to  a  local  court  as 
that  held  by  the  earls.  The  bishop  withdrew  from 
the  shire  court  as  a  result  of  William's  separation  of 
ecclesiastical  from  lay  jurisdiction. *  The  court  met, 
as  formerly,  twice  a  year;  but  it  could  be  summoned 
oftener  by  the  king  when  he  had  any  special  business 
that  he  wished  it  to  transact.  The  time  of  meeting 
and  the  make-up  of  the  regular  hundred  court 2  under- 
went no  change  in  the  early  Norman  period;  by  that 
time,  it  was  held  either  by  the  sheriff  or  by  some 
deputy  directly  responsible  to  him.3 

Review  iii.,  417-421.  The  territorialising  of  suit  of  court  probably 
began  in  the  Anglo-Saxon  period,  but  this  has  not  been  proved. 
See  above,  pp.  21,  22. 

1  See  below,  p.  116. 

'On  the  specially  full  meetings  of  the  hundred  court  in  Henry 
I.'s  time,  meetings  that  were  really  becoming  king's  courts,  see 
below,  pp.  168-170. 

3  In  the  obscure  and  unreliable  Leges  Henrici  Primi,  we  read 
of  the  possibility,  if  neither  a  lord  nor  his  steward  could  attend  court, 


92  The  Norman  Conquest 

In  the  reign  of  William  II.,  the  holding  of  the  hundred 
and  shire  courts  fell  into  irregularity  and  abuse.  To 
some  extent,  the  king  was  manipulating  them  in  his 
own  interest  through  his  officer,  the  sheriff;  but  un- 
doubtedly the  chief  abuse  was  by  the  sheriff  himself. 
The  courts  were  summoned  capriciously,  and  unusual 
or  extortionate  fines  were  levied.  This  would  have 
been  impossible  in  the  Anglo-Saxon  period  when  bishop 
and  earl  sat  with  the  sheriff,  and  the  essentially  popular 
character  of  the  courts  was  safeguarded  by  this  balance 
of  officials.  Henry  I.,  early  in  his  reign,  ordered 
that  these  courts  be  held  as  they  had  been  before 
the  Conquest,  thus  correcting  the  sheriffs'  abuses  of 
his  brother's  time.  This  was  but  a  small  part  of 
what  Henry  did  in  a  judicial  way.  As  has  been  re- 
marked, his  reign  opened  the  great  period  of  constitution 
making,  and,  more  particularly,  the  twelfth  century 
judicial  development.  Hence  we  do  not  consider  in 
this  section  the  later  fortunes  of  these  ancient  courts. 

As  to  private  jurisdiction,  the  Conqueror  had,  of 
course,  always  known  it  upon  the  continent  and  must 
have  regarded  it,  in  some  form,  as  a  part  of  the  natural 
order  of  things.  It  was  growing  rapidly  in  England 
in  Edward  the  Confessor's  day,  a  growth  that  must 
have  been  fostered  by  the  incoming  continental  ideas. 
As  the  vague  and  illogical  Anglo-Saxon  conceptions  of 

of  the  lord's  being  represented  by  the  priest  or  reeve  and  four  men 
from  the  manor.  If  such  a  system  actually  prevailed  in  the  ordinary 
hundred  and  shire  courts,  it  is  impossible  to  say  what  the  functions 
of  these  representatives  were.  The  reeve  and  four  men  would 
ordinarily  be  villeins,  and  it  is  clear  that  they  were  not  regarded 
as  suitors,  that  is,  could  not  act  as  judges  in  the  courts.  As  to 
their  connection  with  the  frankpledge  and  later  jury  system,  see 
below,  pp.  137,  147,  148;  169-171. 


Norman  and  Anglo-Saxon  Institutions   93 

private  courts  played  no  part  in  later  history,  it  is 
necessary  here  to  grasp  clearly  the  main  ideas  brought 
from  the  continent.  The  principle  that  a  man  had 
jurisdictional  rights  over  the  unfree  tenants  of  his  land 
had  its  origin  in  the  Roman  empire.  Such  rights  can 
certainly  not  be  regarded  as  having  originated  in 
governmental  grants.  On  the  other  hand,  private 
jurisdiction  over  freemen  grew  upon  the  continent 
at  a  later  time  and  as  a  result  of  the  breakdown  of 
the  central  government.  This  took  place  in  three  ways : 
the  sovereign,  in  his  weakness,  made  to  private  indi- 
viduals grants  that  either  expressed  or  implied  judicial 
authority;  men  who  had  been  bona  fide  officials  in 
earlier  times  continued  to  exercise  their  judicial 
functions,  essentially  upon  their  own  private  re- 
sponsibility, after  the  state  had  broken  down;  and 
there  were  out  and  out  usurpations. 1  It  was  natural 
that  a  recovering  central  power,  especially  one  under 
the  sway  of  the  Roman  idea  that  the  sovereign  was 
the  source  of  all  legislative  and  judicial  authority, 
should  assume  that  all  such  power  in  private  hands  had 
passed  there  by  royal  grant,  and  hence  could  be  re- 
sumed whenever  the  king  saw  fit.  The  Conqueror  and 
his  early  successors  did  not  do  much  theorising  upon 
this  matter,  but  the  lavish  judicial  grants  which  they 
sometimes  made  certainly  implied  that  they  had  a 
good  deal  to  give;  and  where  they  found  any  one 
exercising  a  jurisdiction  so  great  as  to  be  prejudicial 
to  themselves,  they  were  very  fertile  in  practical  means 
to  limit  it. 2  But  there  came  a  time  when  an  English 
king  set  himself  to  theorise  upon  the  subject,  and  it 

1  See  Adams,  Civilisation  during  the  Middle  Ages,  pp.  210-214 

2  For  conditions  in  pre-conquest  Normandy,  see  above,  pp.  76,  77. 


94  The  Norman  Conquest 

will  be  useful,  in  that  connection,  to  have  in  mind  the 
actual  historical  facts. l  The  Norman  Conquest  was 
responsible  for  the  first  clear  formulation  in  England 
of  the  idea  that  the  king  was  the  source  of  law.  It 
also  brought  in  the  principle  then  obtaining  on  the 
continent,  that  a  man  had,  by  virtue  of  the  feudal 
relation,  some  degree  of  jurisdiction  over  his  vassals. 
These  two  ideas,  at  bottom  contradictory,  must 
sooner  or  later  clash. 

As  the  classes  of  men  and  the  classes  of  courts  after 
the  Conquest  have  now  been  considered,  it  may  be 
useful,  by  way  of  recapitulation,  to  note  in  what  courts 
the  three  classes,  serfs,  non-noble  freemen,  and  nobles, 
would  ordinarily  appear.  The  serf  was  entirely  under 
the  jurisdiction  of  his  lord  in  the  manorial  court; 
his  lord's  steward  presided  and  his  fellow  serfs  and 
probably  the  freemen  on  the  same  manor  were  his 
judges.  The  non-noble  freeman  was  under  the  juris- 
diction of  his  lord,  where  such  jurisdiction  belonged 
to  the  latter  of  ancient  right  or  had  been  acquired 
through  the  new  disposition  of  the  land,  or  he  might 
still  be  subject  to  the  hundred  court.  In  the  lord's 
court,  he  was  judged  by  the  other  freemen  of  the 
manor,  probably  not  often  by  the  villeins.  The 
natural  working  of  the  continental  idea  of  the  lord's 
judicial  authority  over  his  tenants  was  undoubtedly 
reducing  the  sphere  of  the  hundred  and  shire  courts, 
and  tnis  process  might  have  reached  its  logical  con- 
clusion had  not  a  new  and  mightier  force  interrupted 
and  changed  it.  The  noble,  the  man  holding  upon 
condition  of  honourable  service,  was  under  the  juris- 
diction of  his  lord  and  was  amenable  to  a  court  over 

»  See  below,  pp.  178,  179. 


Norman  and  Anglo-Saxon  Institutions    95 

which  the  latter  presided,  and  in  which  his  fellow 
vassals,  those  holding  of  the  same  lord,  were  his 
judges.  In  a  very  literal  sense  of  the  word,  he  was 
judged  by  his  peers.  This  court  was  not  held  at  a  fixed 
time  or  place  like  the  manorial  court.  It  was  char- 
acteristic of  the  strictly  feudal  jurisdiction  to  operate 
irregularly,  simply  as  occasion  required.  It  had  an 
even  less  flourishing  and  lengthy  career  in  England 
than  the  other  form  of  private  jurisdiction.  The 
highest  suzerain  of  all,  the  king,  had  his  feudal  court 
made  up  of  his  tenants-in-chief ,  in  the  same  manner  as 
any  other  lord  with  vassals.  It  was  the  Curia  Regis, 
or  king's  court. 1  But  he  was  king  as  well  as  suzerain, 
and  a  mighty  king  at  that,  and,  from  the  beginning, 
his  feudal  court  did  some  extraordinary  and  unfeudal 
things  in  the  way  of  arbitrary  interference  in  cases 
either  in  the  communal  or  private  courts.  The  king's 
court  was  soon  to  be  the  most  prominent  factor  in 
English  judicial  history. 

This  sketch  of  the  local  powers  and  jurisdictions 
just  after  the  Conquest  must  include  a  mention  of  the 
palatine  earldoms.  The  well-known  object  of  these 
was  to  erect  a  specially  centralised,  efficient,  and 
interested  power  on  the  dangerously  exposed  frontiers. 
William,  whose  conquest  had  done  so  much  to  rid 
England  of  overpowerful  earls,  perhaps  did  not  at 
first  feel  ready  to  do  entirely  without  this  favourite 
resource  of  immature  governments ;  but  it  is  more  likely 
that  he  accepted  something  of  the  sort  as  a  matter 
of  course  and  that  the  traditional  locations  of  some 
such  powers  in  Anglo-Saxon  times  was  of  influence. 
Certain  earls  were  given  large,  compact  pieces  of 

» See  below,  pp.  102-104. 


96  The  Norman  Conquest 

territory  which  were  made  practically  exempt  from 
all  governmental  interference,  as  far  as  internal  affairs 
were  concerned.  Chester,  Durham,  and  Kent  were 
the  three  palatine  earldoms  established.  As  Kent 
was  only  granted  for  life,  little  account  need  be  taken 
of  it.  The  two  others  lasted  long  and  had  many 
important  consequences.  Several  other  holdings,  es- 
pecially those  on  the  Welsh  border  to  the  south  of 
Chester,  fell  only  a  little  short  of  these  in  point  of  size, 
compactness,  and  immunity  from  state  interference. 
But  when  these  greatest  of  private  powers  after  the 
Conquest  are  compared  with  the  houses  of  Godwin 
or  Leofric  in  Edward's  time,  the  contrast  is  so  striking 
as  to  need  no  insistence. 

3.  The  Boroughs. — Although  the  Norman  Conquest 
resulted  finally  in  greatly  stimulating  all  commercial  and 
industrial  interests  in  England,  its  early  effect  upon  the 
boroughs  was  depressing.  We  have  seen  that  in  the  late 
Anglo-Saxon  period  the  boroughs  were  more  and  more 
regarded  as  being  upon  the  domain  of  some  lord,  and 
that  the  king  had  by  far  the  largest  number. 1  Under 
the  influence  of  continental  ideas,  all  boroughs  became 
lords'  boroughs  soon  after  the  Conquest.  When  the 
citizens  of  the  struggling  continental  municipalities 
of  this  period  were  regarded  individually,  they  were 
always  classed  as  servile,  and  most  of  them  were  of 
servile  origin.  It  was  natural  that  the  new  Norman 
lords  of  the  English  boroughs  should  regard  the  bur- 
gesses in  the  same  way.  This  could  not  but  tend  to 
lower  their  status,  but  the  idea  wras  so  contrary  to 
fact  in  England  that  its  logical  results  in  the  treat- 

1  See  above,  pp.  35,  36. 


Norman  and  Anglo-Saxon  Institutions   97 

ment  of  burgesses  were  far  from  completely  realised. 
However,  the  somewhat  arbitrary  levying  by  the 
lord  of  a  payment  called  tallage  from  his  boroughs 
certainly  originated  in  it.  Tallage  is  to  be  care- 
fully distinguished  from  the  old  firma  burgi,  made  up 
of  the  rents,  tolls,  and  court  fines.1 

The  boroughs  also  suffered  severely  from  the  ex- 
tended devastations  which  William  I.  found  necessary 
to  the  complete  conquest  of  England.2  But  the  stable 
peace  which  the  strong  Norman  and  Angevin  kings 
gave  the  country  and  the  commercial  advantages 
of  the  closer  connection  with  the  continent  soon  began 
to  affect  the  boroughs  favourably.  This  was  noticeable 
as  early  as  the  reign  of  Henry  I.,  and  from  that  time 
the  boroughs  entered  more  regularly  upon  the  struggle 
for  liberties  and  immunities  which  began  slightly 
before  the  Conquest.  The  specific  things  they  were 
seeking  varied  somewhat  according  as  they  were 
king's  towns  or  those  of  ecclesiastical  or  lay  lords, 
but  may  be  grouped,  in  a  general  way,  as  follows :  they 
wanted  their  firma  fixed  at  a  lump  sum,  and,  in  the 
case  of  the  king's  towns,  paid  directly  to  the  king  with- 
out the  sheriff's  intervention;  they  wanted  to  be  free 
from  tallage  and  Danegeld;  they  wanted  as  little 
interference  as  possible  from  outside  in  choosing  their 
officers  and  in  jurisdiction,  every  burgess  being  amen- 
able only  to  the  borough  court ;  they  strove  to  mitigate 
the  network  of  tolls  by  which  they  were  surrounded 

• 

and  which  hampered  the  ingress  and  egress  of  traders. 
Henry  I.  granted  a  charter  to  London  which  may  be 

1  See  above,  p.  37. 

2  "The  civic  population  recorded  in  Domesday  fell  from  17,000 
to  7,000." — Medley,  English  Constitutional  History,  p.  423. 


regarded  as  inaugurating  the  boroughs'  great  twelfth 
century  struggle  for  independence.  The  privileges  con- 
ferred by  this  charter  were  great,  considering  the 
time,  and  it  served  as  an  important  incentive  to  other 
boroughs.  "The  privileges  of  the  citizens  of  London 
are  not  to  be  regarded  as  a  fair  specimen  of  the  liberties 
of  ordinary  towns;  but  as  a  sort  of  type  and  standard 
of  the  amount  of  municipal  independence  and  self- 
government  at  which  the  other  towns  of  the  country 
might  be  expected  to  aim."  1 

The  logical  outcome  of  what  the  boroughs  were  aim- 
ing at,  just  as  in  the  case  of  continental  municipalities, 
was  complete  political  independence.  In  all  countries 
where  the  feudal  regime  was  supreme,  the  municipali- 
ties felt  themselves  to  be  alien  units  in  uncongenial 
and  hostile  surroundings.  They  were,  in  many  re- 
spects, the  advance  guards  of  the  modern  in  the  midst 
of  the  medieval.  They  learned  early  the  particularity 
of  their  interests;  their  hand  must  be  against  every 
man  as  every  man's  hand  was  against  them ;  the  interests 
of  the  feudal  warrior  and  of  the  citizen  were  antipodal. 
Any  possibility  of  the  towns'  profitably  sharing  in  the 
general  government  of  the  country  was  denied  by 
every  condition  of  the  time.  Rather  it  was  their 
purpose  to  wall  themselves  off,  literally  and  figura- 
tively, from  all  governmental  surroundings  and,  while 
profiting  by  the  growing  industrial  demands  and  by 
commerce,  work  out  their  own  institutional  salvation. 
They  soon  learned  the  most  effective  ways  to  use 
their  increasing  numbers  and  wealth.  To  buy  privi- 
leges was  their  great  method,  but  they  knew  how 
to  use  force  upon  occasion.  These  conditions  were 

1  Stubbs,  Select  Charters,  p.  107. 


Norman  and  Anglo-Saxon  Institutions  99 


much  the  same  in  Germany,  France,  and  England  in 
the  twelfth  century.  In  Germany,  owing  to  the 
break-down  of  the  central  government,  the  logical 
conclusion  was  finally  reached,  in  many  cases,  in  the 
free  cities.  In  France,  it  was  measurably  reached, 
for  a  time,  in  the  communes  of  the  north  and  south; 
later,  all  liberty,  inside  the  city  walls  as  well  as  out,  was 
lost  in  the  absolute  power  of  the  king.  In  England, 
the  boroughs  never  reached  political  isolation,  nor 
were  their  political  rights  taken  away  from  them  by 
an  absolute  king;  a  unique  set  of  conditions  and  series 
of  events  broke  down  the  barriers  between  them  and 
certain  important  elements  of  the  outside  population 
and  eventually  made  it  possible  for  the  burgesses  to 
take  part  in  the  general  government  of  the  country.  * 

4.  The  Central  Government — King  and  Curia  Regis. — 
The  most  important  and  far-reaching  constitutional 
result  of  the  Norman  Conquest  was  the  strengthening 
of  the  central  government.  We  have  seen  the  Anglo- 
Saxon  constitution  stronger  in  the  lower  part  of  the 
structure  than  in  the  higher:  now,  without  damage  or 
violent  change  in  the  lower  part,  the  higher  was  trans- 
formed and  strengthened  and  the  way  prepared  for 
the  union  between  the  two,  which  is  the  key  to  most 
of  the  later  constitutional  growth. 

In  the  Anglo-Saxon  period,  the  central  government 
consisted  of  king  and  witan;  after  the  Conquest,  it 
consisted  of  the  king  and  king's  court,  or  Curia  Regis. 
The  word  king,  as  applying  to  the  first  two  Norman 
rulers  of  England,  had  a  larger  content  than  it  had  ever 
had  in  Anglo-Saxon  times  or  than  it  had  had  in  France. 
And  it  was  not  to-  remain  long  unchanged  after  the 

»  See  Part  III.,  |  III.,  4,  5,  6. 


ioo  The  Norman  Conquest 

Conquest;  from  reign  to  reign  and  century  to  century, 
one  has  to  carefully  revise  his  conception  of  the  English 
kingship.  It  is,  perhaps,  needless  to  say  that  when 
William  conquered  England  he  did  not  trouble  himself 
about  a  theory  of  royalty.  He  knew  its  practical 
limitations  in  both  England  and  France,  and  he 
determined  to  rid  himself  of  these  as  far  as  possible. 
The  substance  of  power  was  what  he  wanted.  He 
certainly  did  not  purpose  to  emphasise  any  break  in 
Anglo-Saxon  policy  caused  by  the  Conquest;  he  was 
the  successor  of  Edward  rather  than  a  conqueror  intro- 
ducing new  and  strange  notions.  He  laid  much 
stress  upon  the  promises  of  Edward  and  Harold,  and, 
in  the  coronation  ceremony  and  the  important  corona- 
tion oath,  he  followed  the  Anglo-Saxon  form.  But 
he  immediately  began  to  rule  as  no  Anglo-Saxon 
king  had  ruled,  and  the  introduction  of  feudal  tenure 
and  the  ambitious  expectations  of  his  followers  did 
not  'reduce  him  to  the  empty  kind  of  suzerainty  held 
by  the  king  of  France.  English  kingship  changed 
because  there  had  been  a  conquest  and  because  the 
Conqueror  was  what  he  was,  and  it  remained  changed 
because  his  successors  were,  for  the  most  part,  strong 
men  with  a  similar  determination  to  rule.  Had  he 
been  succeeded  by  weaklings,  there  is  no  reason  to 
suppose  that  it  would  not  finally  have  fallen  back  where 
it  was  in  the  person  of  Edward  the  Confessor.  The 
Norman  kings  had  no  well-defined  conception  of  ab- 
solutism; they  thought  it  possible  to  obtain  sufficient 
power  under  the  old  forms.  The  facts  preceded  theory ; 
new  conceptions  dawned  slowly  in  the  middle  ages, 
and  before  any  distinct  theory  of  absolute  monarchy  got 
lodged  in  people's  minds  the  king's  power  began  to  be 


Norman  and  Anglo-Saxon  Institutions    101 

limited  in  a  new  way,  and  a  new  set  of  ideas,  destined 
to  be  permanent,  began  to  form. 

Notwithstanding  this  general  precedence  of  fact  over 
theory,  there  was  brought  in  from  the  continent  by  the 
Conquest  at  least  one  important  idea  concerning  king- 
ship that  had  only  in  the  vaguest  way  been  in  England. 
It  was  the  idea  that  the  sovereign  was  the  source  of  all 
legislative  and  judicial  power.  It  had  passed  into 
Prankish  kingship,  as  had  so  much  else,  from  Rome. 
It  is  easy  to  get  a  wrong  impression  of  the  vividness 
with  which  this  had  ever  been  present  on  the  continent ; 
we  see  it  quite  clearly  in  Charlemagne,  but  after  him 
it  had  certainly  lost  all  reflection  in  facts.  This 
Roman  idea  was  an  important  factor  in  the  creation 
oftheJEnglish  judicial  system.1 

The  best  concrete  example  of  the  great  power  that 
the  Conqueror  was  exercising  by  the  end  of  his  reign 
and,  doubtless,  his  most  original  piece  of  work,  was  the 
Domesday  survey.  While  it  had  no  technical  bearing 
upon  his  relations  to  his  people,  either  as  feudal  lord 
or  sovereign,  it  was  of  immense  practical  value  in 
putting  the  resources  of  the  newly  acquired  country 
at  his  command.  The  Domesday  survey  was  really 
a  census,  undertaken  on  a  scale  of  magnitude  and 
precision,  which,  for  times  when  anything  of  the  sort 
was  almost  unheard  of,  testifies,  as  nothing  else  does, 
of  the  organising  genius  and  energy  of  its  author. 
William  had  conquered  him  a  country;  it  lay  open 
and  subdued  before  him,  giving  him  an  unmatched 
opportunity  to  do  with  it  as  he  chose.  He  would  know 
his  new  acquisition  to  the  smallest  details,  its  re- 
sources, its  population,  its  local  conditions  and  history. 

'See  Part  III.,  §  I.,  i. 


UNIVERSITY  OF  CALIFORNIA 
SANJA  BARBARA  COLLEGE  LIBR/ 


102  The  Norman  Conquest 

The  resulting  Domesday  Book  gives  us  a  know- 
ledge of  England  in  the  eleventh  century  such  as  is 
possessed  of  no  other  European  country  for  the 
same  period.1 

The  early  Norman  king  governed  in  conjunction 
with  his  feudal  court,  which,  for  more  than  a  century 
after  the  Conquest,  was  known  as  Curia  Regis  or  Con- 
silium.2  So  many  important  parts  of  the  English 
government  have  grown  out  of  this  body  that  there 
has,  not  unnaturally,  been  much  interest  manifested 
in  its  origin.  Many  scholars  have  felt  great  pride 
in  tracing  all  the  best  products  of  England's 
later  constitution  to  something  primitively  Anglo- 
Saxon,  and  hence  have  discussed  this  question  with 
a  considerable  amount  of  bias.  The  cause  for  pride 
seems  so  obviously  to  lie  in  the  successful  de- 
velopment of  the  primitive  institution  into  a  thing 
of  permanent  value  to  all  mankind  that  one  ought 
to  be  able  to  approach  the  question  of  origins  with 
an  open  mind. 

The  term  Curia  Regis  was  applied  to  a  small,  per- 
manent body  of  officials  and  barons  in  attendance  on 
the  king,  and  to  a  larger  body  of  counsellors,  who,  in 
early  times,  met  three  times  a  year  on  the  three  great 

1  Documents  3  and  4  in  A.  and  S.  are  characteristic  entries  in  the 
Domesday  Book.  The  chief  matter  of  constitutional  interest 
in  connection  with  the  Domesday  survey  is  not  the  fact  of  the 
survey  itself  but  the  method  by  which  it  was  made.  See  below, 
p.  140  ff. 

J  In  the  Latin  of  this  time,  there  was  but  one  word  for  counsel  and 
council,  namely,  consilium;  hence  it  is  hard  to  tell  in  what  instances 
the  word  signified  a  distinctly  recognised  body  of  men.  It  seems 
to  have  more  frequently  meant  counsel,  and  it  is  safer  not  to  regard 
it  as  indicating  any  specific  form  or  differentiation  of  the  Curia 
Regis  until  a  much  later  time.  See  below,  pp.  287-289. 


Norman  and  Anglo-Saxon  Institutions    103 

church  festivals  when  the  king  wore  his  crown.1  It 
is  impossible  to  make  a  clear  distinction  between  the 
work  of  these  bodies.  One  is,  perhaps,  inclined  to 
think  of  the  smaller  Curia  Regis  as  administrative 
and  the  larger  as  deliberative  or  legislative,  but  these 
are  ideas  entirely  foreign  to  the  times.  Little  delib- 
eration took  place,  and  the  assent  of  the  barons  to  the 
king's  ordinances  seems  to  have  been  much  a  matter 
of  form.  Work  that  we  should  consider  judicial  and 
administrative  occupied  most  of  the  time  of  the 
Curia  Regis,  the  larger  meeting  especially  devoting 
itself  to  the  former;  but,  as  far  as  can  be  judged,  there 
existed  at  the  time  no  conscious  distinction  between 
either  the  functions  or  the  powers  of  the  two  bodies. 
It  is  more  correct  to  say  that  there  were  not  two  bodies, 
but  larger  and  smaller  sessions  of  the  same  body; 
when  the  larger  Curia  Regis  was  in  session,  the  smaller 
ceased  to  exist. 

The  question  that  next  arises  concerns  the  com- 
position of  the  larger  Curia  Regis.  Was  it  made  up  on 
the  same  principle  as  the  Anglo-Saxon  witan?  The 
principle  of  its  composition  some  half  or  three  quarters 
of  a  century  later  is  very  evident,  and  the  specific 
question  here  is  as  to  how  soon  after  the  Conquest 
this  principle  began  to  operate.  The  Curia  Regis 
of  Henry  II.'s  time  was  made  up,  for  the  most  part, 
of  the  king's  tenants-in-chief.  The  officials  and  mem- 
bers of  the  king's  household  might,  obviously,  attend 
on  other  grounds,  but  most  of  the  great  officials  were 
vassals  of  the  king.  The  king  might  invite  persons 

1  An  exact  date  for  this  bifurcation  of  the  Curia  Regis  cannot  be 
assigned,  but  there  are  certainly  traces  of  it  before  Henry  I.,  in 
reign  it  became  permanent  and  important, 


104  The  Norman  Conquest 

whose  attendance  he  wanted  for  some  special  and 
immediate  purpose,  as  was  often  the  case  with  papal 
legates;  and  it  must  not  be  supposed  that  the  lesser 
tenants-in-chief  lalHattehded  or  were  expected  to  at- 
tend. But  the  principle  existed  that  the  great  majority 
attended."  because  they  were  king's  vassals.  This 
means  that  the  Curia  Regis  was  the  king's  feudal 
court.  Now  was  it  a  feudal  court  immediately  after 
the  Norman  Conquest  or  did  it  only  gradually  become 
so?  It  is  foreign  to  the  spirit  of  the  time  to  suppose 
that  William  consciously  changed  the  witan  into  a 
new  kind  of  council.  But  as  the  feudal  tenure  began 
to  prevail,  most  of  his  counsellors  would  naturally 
be  those  who  held  from  him  in  chief.  William  brought 
in  the  continental  feudal  organisation  because  he 
knew  no  other  and,  when  he  had  done  so,  he  was  bound 
to  have  a  feudal  court  made  up  of  his  tenants-in-chief, 
just  as  every  other  lord  of  vassals  had.  Thus  we  may 
believe  that  the  king's  feudal  court,  the  Curia  Regis, 
came  into  existence  in  England  almost  as  soon  after 
the  Conquest,  and  with  about  as  much  conscious 
creation,  as  the  Norman-French  language. 

5.  Taxation. — The  Normans  brought  into  England  no 
ideas  on  taxation  that  were  in  advance  of  those  already 
there.  In  fact,  the  Danegeld  under  Cnute  probably  ap- 
proached more  nearly  a  true  tax  than  anything  known  to 
the  Normans.  Hence  what  has  been  said  of  the  concep- 
tion of  the  royal  revenue  as  being  the  proper  and 
sufficient  support  of  king  and  government,  the  idea 
that  the  king  should  "live  of  his  own,"  applies  long 
after  the  Conquest. l  But  a  change  in  the  Danegeld 

»  See  below,  pp.  56,  57. 


Norman  and  Anglo-Saxon  Institutions    105 

and  some  changes  in  the  ordinary  sources  of  revenue 
and  the  ideas  connected  with  them,  changes  that 
formed  starting  points  for  later  development,  need 
to  be  noted  here. 

The  Conqueror  renewed  the  Danegeld,  which  had 
been  dropped  by  Edward  the  Confessor,  and  trebled 
it.  This  made  it  a  tax  of  six  shillings  on  every  hide 
of  land.1  It  was  levied  regularly,  and  Cnute's  use 
of  it  as  a  regular  payment  for  the  support  of  govern- 
ment was  made  permanent.  From  the  Conquest,  there 
has  always  been  a  land  tax  in  England.  William's 
use  of  the  Danegeld  is  an  excellent  example  of  his 
adoption  of  an  Anglo-Saxon  institution  that  seemed 
likely  to  prove  of  value  to  him.  The  trebled  Danegeld 
was  oppressive,  resting  heavily  upon  the  Anglo-Saxon 
middle  class,  and  probably  contributed  to  the  de- 
pression of  status  in  that  class  which  was  the  final 
result  of  the  Conquest.2  The  desire  for  more  ac- 
curate knowledge  of  the  wealth  of  his  country,  to 
serve  as  the  basis  for  the  assessment  of  this  tax,  was 
an  important  cause  of  William's  Domesday  survey. 
The  data  obtained  served  for  the  assessment  of  the 
land  tax  for  over  a  century. 

Under  feudalism,  some  of  the  requirements  of 
state  were  provided  for  in  a  precarious  fashion  by 
means  of  the  nexus  of  private  contracts.  Thus,  if  all 
these  were  kept,  the  king  would  be  able  to  lead  into 
the  field  as  many  knights  as  the  land  of  the  country 
was  reckoned  as  owing  him.  Where  feudalism  was 
thorough-going,  there  was  no  possibility  of  anything 
like  modern  taxation,  for  the  king  was  in  immediate 

1  The  hide  averaged  about  120  acres. 

2  See  above,  pp.  80-85. 


106  The  Norman  Conquest 

relations  only  with  his  tenants-in-chief.  From  them, 
the  payments  known  as  the  aids  were,  in  theory,  vol- 
untary gifts  to  the  overlord  on  certain  exceptional 
occasions  when  he  was  in  special  need  of  money — 
ransoming  his  body  when  taken  captive  in  war,  the 
knighting  of  his  eldest  son,  and  the  first  marriage  of 
his  eldest  daughter.  If  an  aid  were  to  be  taken  upon 
any  other  occasion,  the  consent  of  the  vassals  must  be 
expressly  given.1  When  the  king  was  able  to  take 
such  unusual  aids  with  some  frequency  and  regularity, 
their  original  character  was  passing  away  and  they 
were  approximating  taxation.  This  change  can  be 
clearly  seen  in  the  thirteenth  century,  but  the  limited 
number  who  could  be  concerned  in  the  aid  prevented 
its  becoming  the  germ  of  any  form  of  national  tax. 
From  his  vassals  the  king  also  received  a  consider- 
able revenue  through  the  so-called  "incidents"  of 
feudal  tenure,  the  most  important  of  which  were 
relief,  wardship,  and  marriage. 2  In  the  reign  of  William 

•  What  is  said  of  aids  or  any  other  element,  expressed  or  implied, 
in  the  feudal  contract  applies,  of  course,  to  any  lord  and  his  vassals 
as  well  as  to  the  king  and  his  vassals. 

2  At  the  death  of  the  vassal,  the  possession  of  his  holding  re- 
verted to  the  overlord  as  a  result  of  the  latter's  abiding  proprietor- 
ship; when  the  heir  of  the  deceased  vassal  took  possession  of  the 
land,  the  payment  of  the  relief  was  an  acknowledgment  of  this 
fact.  When  the  heir  was  a  minor,  the  lord  was  his  guardian  during 
minority  and  received  more  or  less  of  the  land's  income  during 
that  time.  The  lord  must  have  a  voice  in  disposing  of  the  hand  of 
an  heiress  in  marriage,  as  her  husband  would  become  his  vassal. 
She  was  often  given  to  the  highest  bidder.  It  is  not  always  easy  to 
distinguish  exactly  between  the  normal  and  necessary  use  and 
the  abuse  of  these  incidents.  Although  their  true  propriety  had 
long  before  passed  from  them,  they  and  other  minor  incidents 
remained  as  a  source  of  revenue  until  the  abolishing  of  feudal 
tenures  in  the  reign  of  Charles  II. 


Norman  and  Anglo-Saxon  Institutions    107 

II.,  came  the  well-known  abuse  of  those  incidents,  but 
it  should  be  remembered  that  much  was  done  at 
that  time  in  the  way  of  developing  and  determining 
them.  While  for  a  long  time  valuable  to  the  king 
and  to  every  feudal  overlord  as  a  source  of  revenue, 
they  had  no  element  of  taxation  in  them;  they  were 
incidental  to  a  special  form  of  private  contract.  But 
these  contracts  served  the  state  in  a  really  public 
manner  when  they  supplied  an  army.  That  this  was 
recognised  is  shown  by  article  eleven  of  Henry  I.'s 
coronation  charter:  "To  those  knights  who  hold  their 
land  by  the  cuirass,  I  yield  of  my  own  gift  the  lands 
of  their  demense  ploughs  free  from  all  payments  and 
from  all  labour,  so  that  as  they  have  thus  been  favoured 
by  such  a  great  alleviation,  so  they  may  readily  pro- 
vide themselves  with  horses  and  arms  for  my  service 
and  the  defence  of  my  kingdom." 1  It  was  felt  in 
Henry  I.'s  days  that  the  prelates  who  held  from  the 
king  by  barony,  but  who,  owing  to  their  ecclesiastical 
character,  might  not  serve  personally  in  the  field, 
should  make  a  payment  of  money  instead.  This  was 
the  origin  of  scutage,  or  shield-money.  It  was  the 
commutation  of  a  service  owed  on  the  basis  of  private 
contract;  but  Henry  I.  was  so  much  a  sovereign  as  well 
as  suzerain  that,  as  in  the  article  of  his  charter  just 
quoted,  one  feels  that  the  public  character  of  the  ser- 
vice provided  for  in  this  private  manner  was  being 
much  emphasised.  This  was  still  more  the  case  in 
Henry  I  I.'s  reign,  when  scutage  was  extended  to 
laymen  and  became  a  system  for  commuting  personal 
service  that  the  sovereign  manipulated  much  to  suit 
himself,  and  from  which  he  derived  much  money  for 
i  A.  and  S..  p.  6. 


io8  The  Norman  Conquest 

hiring  mercenaries  on  the  continent.  In  the  hands 
of  John,  it  became  so  regular  and  frequent  a  levy  that 
we  can  no  longer  think  of  it  as  a  commutation  of  any- 
thing private  or  public;  it  had  become  a  tax.  But 
as  was  the  case  with  the  feudal  aids,  scutage  concerned 
a  class  of  men  rather  than  a  kind  of  property,  and 
hence,  in  the  fading  out  of  feudal  distinctions  in  the 
late  thirteenth  century,  it  came  to  an  end. 

A  source  of  revenue  that  has  the  appearance  of  a  tax 
was  the  tallage  levied  upon  his  boroughs  by  the  king; 
but,  as  has  been  shown,  this  seems  to  have  had  its  root 
in  two  continental  conceptions:  one,  that  a  lord  had 
the  right,  on  occasion,  to  take  something  arbitrarily 
from  the  property  of  his  unfree  tenants ;  the  other,  that 
the  citizens  of  a  municipality  were  unfree.1  The  king 
tallaged  his  boroughs  as  a  lord  of  tenants,  not  as  king; 
hence  he  tallaged  only  those  on  the  royal  demesne. 
Other  lords  could  tallage  their  boroughs;  but  it  finally 
became  an  established  practice  that  they  should 
tallage  only  when  the  king  did.  Here  again,  it  was 
only  a  class  that  was  reached, .  and  that  in  a  private 
rather  than  a  public  way.  Tallage  practically  ceased 
in  the  fourteenth  century.  Thus  for  long  after  the 
Norman  Conquest  there  was  no  system  of  national 
taxation  and  no  conception  of  taxation,  in  any  proper 
sense  of  the  word.  The  king  had  various  sources  of 
revenue.  It  goes  without  saying  that,  as  in  the  case 
of  Danegeld,  the  Norman  kings  retained  any  important 
means  of  supply  that  had  attached  to  Anglo-Saxon 
kingship.  As  a  matter  of  fact,  the  Danegeld  was  a  tax, 
but  it  had  been  the  offspring  of  accidental  necessity 

1  See  above,  pp.  96,  97.  The  term  tallage  was  not  applied  to  this 
payment  until  the  reign  of  Henry  II. 


Norman  and  Anglo-Saxon  Institutions    109 

and  had  been  retained,  as  any  source  of  revenue, 
however  originated,  was  always  retained.1  An  actual 
tax  had  preceded  any  idea  of  taxation.  Generally 
speaking,  throughout  the  twelfth  century,  the  king 
"lived  of  his  own." 

6.  The  Church.— The  effects  of  the  Norman  Conquest 
upon  the  English  church  were  many  and  fundamental. 
It  not  only  brought  the  primitive,  insular  church  into 
vital  touch  with  continental  conditions,  but  it  did  this 
at  a  time  when  centralising  tendencies,  the  exaltation 
of  the  papacy,  separation  of  church  and  state,  and  the 
strengthening  of  the  former  at  the  expense  of  the  latter 
were  the  ruling  influences  at  Rome  and  at  many 
important  ecclesiastical  centres.  The  Cluniac  move- 
ment had  reached  its  height  and  was  soon  to  be  sur- 
passed by  the  Hildebrandine  principles,  which,  carried 
to  their  logical  conclusions,  would  have  made  Europe 
a  theocracy.  Hildebrand  had  not  become  Gregory 
VII.  in  1066, 2  but  was,  and  had  been  for  some  years, 
the  most  influential  individual  in  the  Roman  curia. 
It  was  a  time  of  unprecedented  opportunity  for  the 
growth  of  papal  influence  in  Europe,  and  Hildebrand 
knew  how  to  take  wonderful  advantage  of  it.  In 

'The  Danegeld,  under  that  name,  ceased  early  in  Henry  II. 's 
reign,  but  something  corresponding  to  it  was  levied  occasionally 
throughout  his  life.  In  1194,  a  new  basis  of  assessment  for  the 
land  tax  came  into  use;  the  carucate,  or  100  acres  of  ploughland, 
took  the  place  of  the  hide,  which  had  become  an  ill-understood 
and  antiquated  unit.  The  tax  levied  on  the  carucate  was  known 
as  carucage.  It  was  destined  to  a  brief  existence,  coming  to  an 
end  under  Henry  III.  The  origin  of  what  may  be  properly  termed 
national  taxation  will  be  considered  in  connection  with  the  origin 
of  parliamentary  control  of  taxation.  See  below,  pp.  358-361. 

2  He  became  pope  in  1073. 


no  The  Norman  Conquest 

France,  Spain,  Hungary,  Bohemia,  and  even  Scan- 
dinavia, local  conditions  were  most  shrewdly  utilised 
for  spreading  the  Cluniac  reforms,  and  especially  for 
emphasising  the  authority  of  the  pope — where  possible, 
in  the  concrete  form  of  a  papal  overlordship  of  the 
feudal  type;  where  not,  in  any  form  that  presented 
itself.1 

Most  significant  at  just  this  time  were  the  papal 
relations  with  the  Normans  who  were  establishing 
themselves  in  southern  Italy.  In  1059,  Pope  Nicholas 
II.  granted  to  Robert  Guiscard  the  title  of  duke  of 
Apulia  and  Calabria,  but  on  condition  that  Robert 
do  him  homage  and  hold  his  dukedom  of  him  upon 
a  strictly  feudal  basis.  In  1064,  Pope  Alexander  II. 
sent  a  consecrated  banner  to  Roger,  Robert  Guiscard's 
youngest  brother,  who  was  engaged  in  the  conquest 
of  Mohammedan  Sicily.  It  was  looked  on  as  some- 
thing in  the  nature  of  a  crusade  against  the  infidel, 
and,  as  the  conquest  of  Sicily  had  been  vaguely  taken 
into  account  in  the  negotiations  of  1059,  there  was  an 
expectation  on  the  part  of  the  pope  of  holding  the  whole 
of  south  Italy  and  Sicily,  the  future  kingdom  of  Naples 
or  the  two  Sicilies,  as  a  vassal  state.  Here  were  Nor- 
man adventurers  who  won  for  themselves  a  powerful 
state,  with  no  shadow  of  legal  right  save  what  may  be 
thought  derivable  from  papal  grant  and  sanction,  and 
who  then  became  vassals  of  the  church.  There  was 
a  certain  propriety  in  the  fact  that  Norman  rulers  were 
coming  into  this  personal  relation  with  the  papacy, 
for  Normandy  stood  for  very  advanced  ideas  in  church 
reform;  its  monastery  of  Bee  was  known  throughout 
Europe  as  a  sort  of  second  Cluny.  When,  therefore. 

»  See  Stephens,  Hildebrand  and  his  Times,  ch.  viji. 


Norman  and  Anglo-Saxon  Institutions    in 

at  this  very  time,  the  duke  of  Normandy  proposed  to 
conquer  England,  a  country  over  whose  church  the 
papacy  had  almost  no  control  and  from  whose  chief 
archbishopric  the  Norman  Robert  of  Jumieges  had  been 
recently  and  uncanonically  driven,  it  is  no  wonder  that 
Hildebrand  was  interested,  and  regarded  William's 
undertaking  as  a  parallel  on  a  grander  scale  of  that  of 
the  Norman  Roger  in  Sicily. 

The  word  Crusade  was  not  yet  heard  in  the  Christian 
world,  nor  was  it  to  be  heard  till  near  thirty  years  later 
when  Peter  the  Hermit  at  the  Council  of  Clermont  was 
to  utter  his  fiery  declamation  against  unbelievers;  but  a 
virtual  crusade  was  preached  against  Harold  and  his  ad- 
herents, and  all  Europe  knew  that  when  William's  ship- 
building should  be  ended  and  he  should  be  ready  to  sail, 
his  troops  would  march  to  battle  under  the  protection 
of  a  banner  consecrated  by  the  successor  of  St.  Peter. l 

One  of  William's  chief  advisers  and  his  closest  friend 
was  the  great  Lanfranc,  who  had  been  made  prior  of 
the  abbey  of  Bee  in  1045  and  was  later  abbot  of  a  great 
monastery  in  Caen,  and  was  thus  identified  with  the 
most  advanced  continental  thought  on  church  reform. 
Lanfranc  had  also  been  for  many  years  famous  as 
a  theologian.  His  relations  with  William  increased 
the  pope's  expectations  of  church  reform  in  England. 
But  the  expectations  did  not  stop  with  reform.  Why 
should  not  the  Norman  kingdom  in  England  follow 
the  example  of  the  Norman  dukedom  in  Italy,  and 
guarantee  its  continued  co-operation  with  the  pope 
by  the  close,  vassal  relation? 

1  Hodgkin,  The  History  of  England  from  the  Earliest  Times  to  the 
Norman  Conquest,  p.  476. 


ii2  The  Norman  Conquest 

We  have  now  to  consider  William's  attitude,  after 
the  Conquest,  towards  the  pope  and  towards  the 
English  church,  and  how  the  changes  necessarily 
wrought  in  the  church  by  the  influx  of  continental  ideas 
affected  its  relations  to  the  state.  William  had  been 
very  willing  to  profit  by  the  moral  support  and  the 
prestige  which  the  pope's  patronage  had  lent  his 
undertaking,  but  he  did  not  intend  to  allow  the  pope 
to  gain  any  hold  over  England  that  would  at  all  diminish 
his  own  power.  His  policy  was  like  that  of  his  ances- 
tors in  Normandy,  who  had  favoured  a  pure  and  vigor- 
ous church  and  under  whom  Normandy  had  become 
prominently  identified  with  church  reform,  but  who 
had  been  masters  of  everything  in  their  duchy.  About 
1076,  the  demand,  which  must  have  been  expected, l 
came  from  Hildebrand,  now  Gregory  VII.  It  was 
that  William  should  do  homage  to  the  pope  for  England. 
The  papal  legate,  who  brought  this  demand,  bore  also 
the  request  that  the  old  English  payment  to  the  pope, 
known  as  Peter's  Pence,  be  more  diligently  collected 
and  sent.  William  readily  acceded  to  the  latter,  but 
to  the  demand  that  he  become  the  pope's  vassal  for 
England,  he  replied  that  he  had  never  promised  it, 
and  that  his  predecessors  in  England  had  never  entered 
into  any  such  relation  with  former  popes. 

William's  specific  policy  with  respect  to  the  church 

»  "  It  is  quite  within  the  limits  of  possibility  that,  in  his  negotiating 
with  Rome  before  his  invasion  of  England,  William  may  have  given 
the  pope  to  understand,  in  some  indefinite  and  informal  way,  that 
if  he  won  the  kingdom,  he  would  hold  it  of  St.  Peter.  In  accepting 
the  consecrated  banner  which  the  pope  had  sent  him,  he  could 
hardly  fail  to  know  that  he  might  be  understood  to  be  acknowledging 
a  feudal  dependence." — Adams,  The  History  of  England  (1066- 
1216),  p.  49.  See  ibid.,  pp.  38-50  for  an  excellent  general  account 
of  the  effect  of  the  Conquest  upon  the  English  church. 


Norman  and  Anglo-Saxon  Institutions    113 

in  England  is  stated  in  the  well-known  rules  that  have 
generally  been  ascribed  to  him.  He  would  allow  no 
one  in  his  kingdom  to  acknowledge  a  pope  as  true 
pope  except  upon  his  authority  l ;  no  letters  were  to  be 
received  from  the  pope  that  he  had  not  first  seen; 
the  national  synod  of  the  church  was  neither  to  enact 
nor  prohibit  anything  which  was  not  in  accord  with 
his  will;  no  bishop  could  excommunicate  or  bring  to 
trial  any  of  the  king's  barons  or  ministers  except  at 
his  command.  Whether  these  rules  were  formulated 
by  William  or  the  chronicler  who  recorded  them, 
there  is  reason  to  believe  that  they  represent  William's 
purpose  and  practice.  Their  enforcement  meant  royal 
oversight  of  the  relations  between  England  and  Rome 
and  a  strict  royal  control  of  internal  church  polity. 
This  clear-cut,  masterful  attitude  of  the  Conqueror 
undoubtedly  had  an  influence  upon  the  relations  of 
church  and  state  in  England  at  many  later  times,  and 
worked  itself  into  the  English  tradition  that  shared 
in  producing  the  important  anti-papal  legislation 
of  the  fourteenth  century.2 

Of  the  changes  necessarily  wrought  in  the  English 

1  In  a  time  of  frequent  anti-popes,  and  when  the  attitude  of  a 
country  towards  claimants  of  the  papal  office  might  have  many 
political  bearings,  this  was  a  necessary  principle  for  a  sovereign 
who  would  really  rule. 

2  Why  Gregory  VII.,  who  must  have  been  offended  at  what  he 
probably  considered  William's  ingratitude  and  bad  faith,   never 
used  coercive  measures  in  order  to  gain   from  the  conquest  of 
England  the  advantages  which  he  had  looked  for,  is  an  interesting 
question.     The   answer  probably  lies  in  the  greater  importance 
the  contest  with  the  Emperor  must  have  had  in  the  eyes  of  a  pope 
of  that  period;  and  the  practical  difficulty  of  dealing  with  so  dis- 
tant a  country  as  England,  filled  with  the  traditions  of  an  inde- 
pendent church  and  having  such  a  self-willed  sovereign  as  the 
Conqueror,  must  have  been  great. 

8 


ii4  The  Norman  Conquest 

church  by  the  Conquest,  enough  can  be  seen  in  the 
early  post-conquest  period  to  make  clear  the  general 
character  of  the  continental  influence;  but  it  created 
some  conditions,  the  results  of  which  to  church  and 
state  showed  themselves  very  gradually.  The  old  prob- 
lem of  the  relations  of  the  two  English  archbishops1 
faced  Lanfranc  as  soon  as  he  became  archbishop  of 
Canterbury.  While  his  authority  was  questioned  in 
the  province  of  York,  he  could  not  carry  out  the 
thorough-going  reorganisation  and  reform  which  seemed 
to  him  imperative.  That  province  coincided  roughly 
with  the  old  Danelaw,  the  part  of  England  that,  under 
Edwin  and  Morcar,  had  held  aloof  from  Harold,  and 
was  the  hardest  for  William  to  subdue.  It  threatened 
the  unity  and  good  government  of  the  church  as  well 
as  the  state.  William  naturally  favoured  the  claim 
of  Canterbury;  the  question  was  referred  to  Pope 
Alexander  II.,  who,  however,  refused  to  decide  and 
referred  it  back  to  an  English  council.  In  1072, 
a  council  was  held  that  judged  unequivocally  for 
Canterbury.  As  the  decision  was  based  on  historical 
grounds  and  much  documentary  proof  was  adduced, 
it  seems  likely  that  it  was  intended  to  be  final. 2  Though 
this  was  far  from  the  case,  it  is  important  to  note 
here  that  it  settled  the  matter  for  Lanfranc's  lifetime3 

>  See  above,  p.  65,  note  i. 

2  The  documents  were,  for  the  most  part,  forgeries  by  Lanfranc. 
See  Adams,  The  History  of  England  (1066-1216),  p.  44,  and  Bohmer, 
Die  Fdlschungen  Erzbischof  Lanfranks  von  Canterbury,  cited  by 
Professor  Adams. 

» It  was  again  violently  disputed  in  the  reign  of  Henry  I.  In 
1127,  the  real  matter  at  issue  was  dodged  by  the  archbishop  of 
Canterbury's  applying  for,  and  receiving,  the  office  of  papal  legate, 
on  the  basis  of  which  he  could  exercise  authority  over  the  arch- 
bishop of  York.  This  proved  the  final,  though  logically  unsatis- 


Norman  and  Anglo-Saxon  Institutions    115 

and  gave  him  the  coveted  opportunity  to  deal  with 
the  church  as  a  whole. 

As  Norman  barons  were  given  the  lands  of  Saxon 
earls  and  thegns,  so  Norman  prelates  filled  the  vacancies 
in  the  English  church,  and  many  vacancies  were  made 
for  them.  During  the  first  three  or  four  years  after 
the  Conquest,  the  church  was  left  quite  undisturbed; 
here  as  elsewhere  it  was  William's  disposition  to  let 
things  remain.  But  it  became  increasingly  clear  to 
him  and  to  Lanfranc  that  a  general  overhauling  of  the 
church  was  necessary.  Probably  they  did  not  at 
first  realise  how  serious  were  the  differences  between 
the  English  church  and  that  which  they  had  always 
known ;  its  ignorance  and  its  married  clergy  must  have 
surprised  them  as  much  as  its  archaic  customs  and 
its  isolation.  About  Easter  of  1070  a  council  met 
at  which  three  papal  legates  were  present.  The  re- 
moval of  Stigand,  archbishop  of  Canterbury,  whose 
irregular  supersession  of  Robert  of  Jumieges  had 
helped  win  the  pope  to  the  support  of  William,  was 
its  first  work.  From  this  beginning,  the  process  of 
displacement  and  filling  of  vacancies  went  on  rapidly 
until,  at  the  end  of  the  year,  only  two  or  three  English 
bishops  were  left.  While  the  reign  of  William  covered 
the  period  of  the  great  conflict  between  Gregory  VII. 
and  the  Emperor  Henry  IV.  over  the  manner  of  in- 
vesting prelates,  William  did  not  abate  in  the  least 
his  participation  in  the  ceremony.  With  this  whole- 
sale creation  of  Norman  bishops  and  the  consecration 

factory,  solution  of  the  problem;  for  in  1221,  Stephen  Langton, 
archbishop  of  Canterbury,  succeeded  in  establishing  it  as  a  principal 
that  the  office  which  he  held  necessarily  carried  with  it  the  legatine 
power,  and  that  an  archbishop  of  Canterbury  was  papal  legate  from 
the  moment  of  the  pope's  confirmation  of  his  election. 


n6  The  Norman  Conquest 

of  Lanfranc  as  archbishop  of  Canterbury  in  August 
of  the  same  year,  the  transformation  of  the  English 
church  was  well  under  way. 

In  the  early  years  of  William's  reign,  as  in  the  Anglo- 
Saxon  period,  it  is  hard  to  distinguish  a  general  synod 
of  the  church  from  a  state  council.  There  seems  to 
have  been  one  important  trait,  however,  that  marked 
off  the  early  Norman  from  the  Anglo-Saxon  synod; 
whereas  it  was  summoned  by  the  king,  and  barons 
as  well  as  clergy  were  present,  the  final  decision  in 
church  matters  lay  with  the  clergy  alone.  The  church 
made  its  own  laws.  In  the  course  of  time  this  real 
legislative  independence  reflected  itself  in  the  personnel 
of  the  legislative  body  and  the  synods  were  attended 
by  clergy  only.  1  While  this  change  was  taking  place, 
there  was  being  created  the  practically  new  diocesan 
synod.  This  was  a  democratic  assembly  of  the  clergy 
of  the  diocese.  It  was  very  important  at  a  later 
time  in  connection  with  the  origin  of  the  representative 
system  in  Convocation. 2 

About  1070,  came  William's  famous  edict  separating 
the  lay  and  ecclesiastical  jurisdictions;  the  bishop 
ceased  to  be  a  necessary  member  of  the  shire  court, 
and  thereafter  any  one  who  was  to  be  "impleaded  by 
the  episcopal  laws  for  any  cause  or  crime"  was  to  go 
to  the  bishop's  court.3  Perhaps  this  was  the  most 

'Adams,  The  History  of  England  (1066-1216)  pp.  44,  45.  It 
is  interesting  to  note,  in  view  of  later  history,  that  under  Henry  I. 
the  archbishop  of  Canterbury  began  to  hold  his  provincial  assembly 
at  the  same  time  that  the  king  held  his  court.  See  below,  p.  338. 

2  See  below,  p.  332. 

»A.  and  S.,  document  i.  Just  what  was  done  here  and  its 
relation  to  later  judicial  history  will  be  discussed  in  Part  III.. 
»L.  5- 


Norman  and  Anglo-Saxon  Institutions    117 

striking  and  sudden  introduction  of  continental  prac- 
tice. But  changes  were  appearing  rapidly.  When 
the  new  bishops  and  abbots  received  their  endowments 
of  land,  it  was  made  clear  in  each  case  that  a  part  of 
the  land  was  held  as  a  barony;  that  is,  the  bishop  or 
abbot  held  land  as  a  vassal  of  the  king,  and  the  number 
of  knights  owed  from  each  allotment  was  fixed. i  Thus 
the  English  prelates  came  to  have  the  two  clearly  dis- 
tinguishable sides,  the  feudal  and  the  ecclesiastical,  that 
one  usually  associates  with  the  medieval  clergy.  The 
new  bishops  also  conformed  to  continental  practice 
in  the  matter  of  residence.  The  rural  seats  were 
abandoned  and  the  bishops  lived  in  the  largest  towns 
in  their  dioceses.  The  urban  seats  required  more 
attending  clergy,  and  a  development  and  better 
organisation  of  the  cathedral  chapters  resulted.  The 
new  bishops  moved  about  less  and  came  in  less  personal 
contact  with  the  people  of  their  dioceses,  a  change 
that  came  naturally  from  their  continental  training 
and  baronial  rank. 

The  effect  of  the  Conquest  on  the  parish  priests  was 
marked,  though  more  gradual.  The  marriage  of 
priests  was  common  before  the  Conquest,  notwith- 
standing some  attempts  at  reform  in  the  time  of 
Dunstan;  and  the  ordination  of  the  sons  of  priests, 
a  dangerous  abuse,  looking  as  it  did  towards  the 
formation  of  a  clerical  caste,  was  not  uncommon. 
Celibacy  of  the  clergy  was  a  leading  principle  in  the 
Cluniac  programme.  Far-sighted  church  reformers 
saw  that  the  transmission  of  church  property  by 
heredity  and  the  building  up  of  family  interests  among 
the  clergy  would  militate  against  the  undivided 

i  See  A.  and  S.,  document  5. 


devotion  to  the  church  and  the  centralisation  under 
the  pope  for  which  they  were  working.  This  might 
seem,  then,  a  natural  place  for  Lanfranc  to  begin  his 
reforms  and  push  them  with  vigour.  But  he  was  very 
shrewd  and  moderate  in  his  dealings  with  the  lower 
clergy.  J3y  ruling  that  for  the  future  no  priests  should 
marry  and  no  married  clerks  be  ordained,  he  accom- 
plished his  end  slowly  and  without  upheaval.  The 
Conquest  unquestionably  resulted  in  bringing  the 
lower  clergy  under  better  order  and  control. 

In  all  countries  where  the  reform  movements  had 
taken  deep  root  it  had  frequently  come  to  pass  that 
the  right  to  present  to  the  parish  church  was  vested 
in  some  neighbouring  monastery;  usually  one  of  the 
monks  received  ordination  for  this  purpose,  and  the 
church  in  question  was  said  to  be  "reformed."  In  this 
way,  the  monastery  gained  a  control  over  the  income 
of  the  living  and  over  the  incumbent  that  was  very 
complete.  This  undermined  the  power  of  the  bishop 
and  tended  to  make  the  priesthood  the  servant  of  the 
monasteries.  It  was  part  of  the  long  conflict  between 
the  secular  and  regular  clergy,  in  which  the  latter,  whose 
interests  were  always  identified  with  centralisation 
and  the  papacy,  were  strengthened  by  every  monastic 
revival.  In  England,  lay  patronage  had  been  almost 
universal  before  the  Conquest,  although  a  few  parishes 
had  been  "reformed."  After  the  Conquest,  many  lay 
patrons,  with  their  continental  penchant  for  making 
pious  gifts  to  monasteries,  parted  with  their  rights  of 
patronage.  This  and  the  general  effect  of  continental 
ideas  upon  the  church  depressed  somewhat  the  status 
of  the  parish  priest,  who,  before  the  Conquest,  ranked 
with  the  thegn  in  the  social  scale.  From  this  beginning 


Norman  and  Anglo-Saxon  Institutions    119 

lay  patronage  suffered  many  invasions  in  the  following 
centuries  when  the  national  character  of  the  English 
church  was  being  seriously  attacked  by  powerful 
and  ambitious  popes. 

The  reform  movements  that  were  affecting  the  whole 
Christian  church  had  had  their  source  and  inspiration 
in  monasticism.  So  quite  naturally  the  English 
monasteries  underwent  a  great  change  and  renewing  of 
life  after  the  Conquest.  The  appointment  of  abbots 
from  the  continent  who  brought  in  the  new  standards 
of  monastic  life,  the  struggle  of  the  monasteries  to 
free  themselves  from  episcopal  control,  and  the  found- 
ing of  colonies  of  the  great  Cluniac  "Congregation" 
were  important  immediate  changes.  But  England 
was  now  open  to  all  continental  developments;  one 
after  another,  the  new  monastic  orders  of  the  twelfth 
and  thirteenth  centuries  were  introduced  and  most  of 
them  grew  vigorously. 

In  general  the  Conquest  incorporated  England  closely 
with  that  organic  whole  of  life  and  achieve- 
ment which  we  call  Christendom.  This  was  not  more  true 
of  the  ecclesiastical  side  of  things  than  of  the  political 
or  constitutional.  But  the  church  of  the  eleventh  century 
included  within  itself  relatively  many  more  than  the 
church  of  to-day  of  those  activities  which  quickly  respond 
to  a  new  stimulus  and  reveal  a  new  life  by  increased 
production.  * 

>  Adams,  The  History  of  England  (1066-1216),  p.  47. 


PART  III 

The  Period  of  Constitution  Making 
1100-1485 


121 


SECTION  I 


THE    MAKING    OF    THE    JUDICIARY 

THE  last  four  centuries  of  the  middle  ages  were  the 
period  of  the  most  rapid  and  important  creation 
in  the  history  of  the  English  constitution.  Following  a 
period  distinctly  introductory  in  character  and  suc- 
ceeded by  a  time  of  confirmation  and  gradual  develop- 
ment, there  were  in  these  centuries  sketched  out  in 
the  rough  all  the  main  features  of  England's  judicial, 
legislative,  and,  with  one  important  exception,  ad- 
ministrative systems. 1  In  studying  these  centuries, 
then,  one  is  interested  in  watching  the  rapid  and 
virile  growth  of  a  set  of  institutions  destined  to 
be  of  the  greatest  value  to  the  world;  in  succeed- 
ing periods,  he  sees  the  same  institutions,  con- 
stantly perfecting,  suiting  themselves  to  later  and 
more  complex  conditions,  and  successfully  passing 
through  crises  that  proved  their  abiding  value  and 
capacity  for  adaptation. 

Although  in  studying  the  growth  of  institutions  it  is 
impossible  to  make  use  of  chronological  divisions  that 
approach  exactness,  yet  it  may  be  said  that  the  great 
work  of  the  twelfth  century  was  shaping  the  main 
features  of  England's  judicial  system,  though  much 
of  importance  was  left  for  the  thirteenth  and  even 

1  Even  the  exception,  the  system   of   cabinet  government,  was 
clearly  foreshadowed  in  the  fifteer*ac  enturv.     See  below,  pp.  294 
296,  297. 


124        Period  of  Constitution  Making 

later  centuries1;  with  the  same  caution,  we  may 
identify  the  thirteenth  and  fourteenth  centuries  with 
the  creation  of  the  legislative  system2;  and  during 
the  latter  period,  the  conception  of  a  strictly  limited 
executive  power  was  evolving  and  taking  firm  hold 
of  the  minds  of  the  English  people.  Thus  we  study 
in  these  centuries  the  making  of  the  English  consti- 
tution in  its  three  parts,  judiciary,  executive,  and 
legislature.  These  are  to  be  considered  in  the  order 
named. 

i.  Origin  and  Early  Development  of  the  Three  Central, 
Common-Law  Courts  and  the  Circuit  Court  System. — 

As  soon  as  the  early  disorder  and  upheaval  resulting 
from  the  Norman  Conquest  had  subsided,  some 
attempts  were  made  to  bridge  the  gap  between  central 
and  local  government  that  lasted  on  from  Anglo- 
Saxon  times.  Kings  who  had  a  conquered  country 
before  them,  who  felt  their  strength,  would  not  be 
long  in  finding  occasion  to  interfere  in  and  modify 
the  local  institutions.  William  II.  brutally  and  directly 
seized  wealth  and  power.  Neither  he  nor  his  famous 
minister  was  a  statesman,  and,  although  they  accom- 
plished some  things  of  permanent  importance  in  their 
application  of  feudal  principles  to  the  church  and 
in  developing  the  details  of  feudal  obligation,3  their 
expedients,  for  the  most  part,  appear  gross  and  temper 

1  "  Of  all  centuries  the  twelfth  is  the  most  legal.  In  no  other  agt, 
since  the  classical  days  of  the  Roman  law,  has  so  large  a  part  of  the 
sum  total  of  intellectual  endeavour  been  devoted  to  jurisprudence." 
— P.  and  M.  i.,  in. 

»  "In  the  natural  course  of  all  constitutional  history  the  judicial 
precedes  the  legislative."— 'Shirley,  Preface  to  Royal  Letters  [Rolls 
Series]  ii.,  p.  xviii. 

>  See  above,  p.  89. 


The  Judiciary  125 

ary.  A  king  and  a  minister  of  a  different  sort  followed 
them.  The  combined  work  of  Henry  I.  and  Roger 
of  Salisbury,  his  justiciar,  was  the  foundation  of  the 
constitution.  Their  aim  was  the  orderly,  peaceful,  and 
efficient  government  of  the  whole  country  and  the 
strengthening  and  aggrandising  of  the  central  power. 
The  king  had  more  and  more  work  to  do  and  the 
king  acted  officially  through  the  Curia  Regis.  Hence 
this  feudal  court  felt  keenly  the  pressure  of  business. 
In  the  earlier  reigns,  it  had  been  a  comparatively 
simple  and  undifferentiated  body,  but  as  it  had  more 
work  to  do  it  developed  rapidly.  This  development 
was  the  institutional  manifestation  of  the  increasing 
activity  and  effectiveness  of  the  central  government, 
and  was  along  four  main  lines  that  may  be  briefly  sum- 
marised. There  was  a  more  adequate  organisation 
for  transacting  the  king's  business  throughout  the 
year;  the  smaller  Curia  Regis  was  made  a  more  efficient 
and  regular  working  body.  *  A  classification  of  busi- 
ness, that  had  probably  begun  in  the  preceding  reigns, 
was  brought  to  a  state  of  some  maturity  and  efficiency ; 
twice  a  year  the  smaller  Curia  sat  for  financial  business 
and  received  the  revenues  that  were  brought  from 
the  counties  by  the  sheriffs;  the  Exchequer  was  in 
embryo.2  For  the  purpose  of  giving  better  attention 
to  the  king's  interests  in  the  localities  the  Curia  Regis 
became  itinerant;  certain  members  were  sent  out  upon 

1  See  above,  pp.  102,  103. 

»  The  primitive  Curia  Regis  transacted  any  kind  of  king's  business 
Just  as  it  happened  to  come  up.  Pressure  of  work  taught  it  the 
economy  of  time  and  labour  in  doing  all  of  one  kind  at  one  time. 
Financial  business  was  the  first  so  classified.  For  an  account  of  the 
organisation  of  the  Exchequer  in  the  reign  of  Henry  I.  see  Adams, 
The  History  of  England  (1066-1216),  pp.  184-186. 


i26       Period  of  Constitution  Making 

circuits,  or  "iters,"  that  they  might  from  close,  personal 
inspection  accomplish  what  they  could  not  from  a 
distance.  The  judicial  work  of  the  court  began  to 
extend  beyond  cases  in  which  the  king  was  personally 
concerned,  and  limitless  possibilities  of  judicial  growth 
were  opened  when  cases  between  man  and  man  began 
to  be  entertained.  The  two  last-named  developments 
require  further  discussion  here. 

The  practice  of  sending  members  of  the  Curia  Regis 
into  the  localities  to  transact  the  king's  business  was 
fitful  and  uncertain  at  first  and  was  used  only  when 
there  was  something  exceptional  to  be  attended  to; 
but  before  the  end  of  the  reign  it  had  become  an 
established  custom. 1  The  things  that  these  itinerant 
members  did  were  the  same  in  purpose  as  those  done 
by  the  central  body;  they  looked  after  wardships  and 
escheated  property,  inspected  arms,  took  oaths  of 
fidelity  to  the  king,  saw  whether  any  one  had  left  the 
kingdom  or  built  a  new  castle,  saw  that  the  king  had 
his  rights  in  such  judicial  matters  as  he  might  be 
concerned  in,  attended  to  all  matters  touching  the 
royal  revenue — in  short,  they  did  all  the  royal  business 
that  they  were  instructed  to  do  when  they  were  sent 
out.  As  it  has  been  aptly  expressed,  they  carried  the 
Curia  Regis  down  into  the  locality  and  did  a  little 
branch  business  there.  They  remind  one  strongly  of 
Charlemagne's  missi,  and  though  they  were  probably 
not  institutionally  derived  from  these,  the  same  general 
causes  brought  them  forth.  Charlemagne  was  sus- 
picious of  the  loyalty  and  efficiency  of  his  counts  and 
the  missi  were  designed  to  check  and  supplement  the 

1  There  were  occasional  instances  of  this  practice  in  the  earlier 
Norman  reigns  and  even  before  the  Conquest. 


The  Judiciary  127 

counts'  work.  Henry  I.  was  suspicious  of  the  sheriffs, 
and  in  the  English  missi  were  the  means  by  which 
the  sheriffs'  shortcomings  might  be  made  known  and 
remedied.  These  king's  messengers  were  erelong 
known  as  itinerant  justices,  but  the  word  justice 
must  not  be  understood  to  signify  any  exclusively 
judicial  function.  It  was  nearly  two  centuries  before 
that  was  the  case.  The  itinerant  justices  might  be 
sent  out  in  Henry  I.'s  reign  on  purely  judicial  business, 
and  toward  the  end  of  the  reign  were  probably  so 
sent  with  some  regularity ;  but  their  more  normal  work 
was  of  a  general  administrative  sort.  Their  increasing 
judicial  business  however  leads  us  to  inquire  about 
the  judicial  development  of  the  body  of  which  they 
were  members. 

The  judicial  work  of  either  the  Saxon  witan  or  the 
early  Norman  Curia  Regis  was  small;  it  was  confined 
to  "  great  men  and  great  causes."  The  Curia  Regis,  as 
the  king's  feudal  court,  was  where  his  tenants-in-chief 
were  tried.  But  many  cases  in  which  the  property  rights 
of  the  king  were  more  or  less  directly  concerned  would 
come  up  for  trial  in  the  local  courts.  A  few  instances 
are  known  in  which,  even  before  the  Conquest,  the 
king  sent  a  representative  into  a  local  court  or  imposed 
his  order  upon  that  court  to  the  end  that  a  matter 
in  which  he  was  involved  might  be  speedily  and  satis- 
factorily concluded.  After  the  Conquest,  this  royal 
interference  became  more  frequent.  It  was  natural 
that  it  should,  with  the  stronger  king  and  the  conti- 
nental idea  that  the  king  was  the  source  of  law.  Logi- 
cally the  next  step  in  extending  this  kind  of  interference 
would  be  to  draw  the  case  entirely  out  of  the  local 
court  and  try  it  in  the  king's  court,  or  what  was  vir- 


128        Period  of  Constitution  Making 

tually  the  king's  court  owing  to  the  presence  and 
influence  of  the  king's  representatives.  And  so,  as 
we  have  seen,  itinerant  members  of  the  Curia  Regis 
might  be  sent  to  perambulate  a  district  trying  royal 
pleas. l  For  the  better  prosecution  of  all  their  work, 
but  especially  the  judicial,  the  itinerant  justices 
probably  had  the  counties  before  them  in  specially 
full  meetings  of  the  county  courts. 

But  the  king  might  become  interested  in  a  case  owing 
to  the  position  or  influence  of  one  of  the  parties,  and 
where  he  had  no  property  concern  whatever.  The 
plaintiff,  despairing  of  speedy  or  satisfactory  justice 
in  the  local  court,  might  be  in  a  position  to  secure 
royal  interference.  The  king  was  restrained  by 
few  theories  regarding  the  boundaries  of  jurisdiction- 
He  was  the  source  of  law  and  he  was  strong,  and 
he  would  interfere  where  there  seemed  to  him  good 
reason  for  doing  so.  As  such  interference  became 
more  frequent,  the  payment  of  a  sum  of  money  by  the 
plaintiff  became  the  commonest  means  of  securing  it. 
When  the  intervention  had  been  purchased,  the  king 
sent  an  order  to  the  defendant  bidding  him  right  the 
supposed  wrong.  If  this  order  were  disobeyed,  the 
natural  result  was  the  bringing  of  the  defendant  before 
the  king's  court  to  show  cause.  This  amounted  to 
evoking  the  case  from  the  local  court,  where  it  would 
ordinarily  have  been  tried,  into  the  king's  court. 
The  commoner  such  a  practice  became,  the  less  likely 
was  the  defendant  to  be  awed  by  the  royal  command, 
which  thus  became  the  first  step  in  a  regular  procedure. 
The  royal  order,  being  formal  and  important,  was 
written.  Hence  it  was  called  a  writ,  a  name  which,  up 

1  See  A.  and  S.,  documents  2  and  6. 


The  Judiciary  129 

to  that  time,  had  borne  no  special  legal  sense.  The 
cases  that  were  being  thus  dealt  with  were  civil  cases 
and  so  the  rule  became  established  that  every  civil 
case  tried  in  the  king's  courts  must  originate  with 
a  writ. i 

With  the  opening  of  such  a  possibility  as  this,  men 
would  try  to  get  their  cases  into  the  king's  court  if 
there  were  any  regular  advantage  to  be  derived  from 
the  change.  There  was  an  advantage  in  the  better 
law  and  better  methods  employed  there.  The  ancient 
procedure  retained  in  the  local  courts  was  clumsy  and 
inflexible;  owing  to  its  punctilious  formalism,  it  often 
failed  to  render  justice  and  was  not  fitted  to  meet 
the  rapidly  changing  conditions  which  followed  the 
Conquest.  The  king's  court  began  to  supply  what 
was  essentially  an  equitable  jurisdiction;  it  was  em- 
ploying a  law  that  was  free  from  the  trammels  of  the 
old  formalism  and  was  rendering  justice  by  the  most 
direct  means  possible.  It  was  a  court  composed  of 
Frenchmen,  where  the  French  language  was  used; 
but  it  did  not  simply  transfer  French  or  Norman  law 
to  England.  It  made  use  of  any  principles,  French  or 
English,  which  best  suited  its  need,  and  it  did  not 
hesitate  to  strike  out  upon  new  lines.2  But  men  who 

.» For  a  primitive  writ  belonging  to  the  reign  of  Henry  I.,  see 
A.  and  S.,  document  9. 

2  "Of  the  law  that  this  court  administered  we  know  little,  only 
we  may  guess  that  in  a  certain  sense  it  was  equity  rather  than  strict 
law.  On  the  one  hand  the  royal  tribunal  cannot  have  held  itself 
straitly  bound  by  the  old  English  law;  the.  men  who  sat  in  it 
were  Frenchmen,  few  of  whom  could  understand  a  word  of  English. 
On  the  other  hand  it  must  often  have  happened  that  the  traditional 
Norman  customs  would  riot  meet  the  facts,  for  a  Norman  count  and 
a  Norman  bishop  would  be  quarrelling  over  the  titles  of  their 
English  antecessores,  and  producing  English  land-books.  Besides 
9 


130        Period  of  Constitution  Making 

wanted  to  have  their  cases  tried  in  this  new  court 
had  to  pay  for  the  privilege,  they  had  to  buy  the 
originating  writs.  There  was  thus  a  transaction 
profitable  to  both  parties.  Men  liked  to  get  their 
cases  into  the  king's  court,  for  they  felt  surer  of  justice 
there;  the  king  liked  to  have  them  buy  the  privilege, 
for  it  swelled  his  revenue. 

The  central  government  was  in  an  exceedingly 
vigorous  and  promising  condition  at  the  close  of 
Henry  I.'s  reign.  Almost  any  future  seemed  possible 
for  the  fertile  and  adaptable  Curia  Regis.  But  it 
was  a  very  critical  point  in  the  history  of  this  central 
machinery.  The  system  was  very  young  and  lacked 

the  king  did  n't  mean  that  England  should  be  another  Normandy, 
he  meant  to  have  at  least  all  the  rights  that  his  cousin  and  prede- 
cessor had  enjoyed.  .  .  .  "  His  jurisprudence  was  "flexible," 
"occasional,"  "dealing  with  an  unprecedented  state  of  affairs, 
meeting  new  facts  by  new  expedients,  wavering  as  wavered  the 
balance  of  power  between  him  and  his  barons,  capable  of  receiving 
impressions  from  without,  influenced  perhaps  by  Lombard  learning, 
modern  in  the  midst  of  antique  surroundings.  In  retrospect  it 
would  appear  to  a  man  of  Henry  I  I.'s  day  as  something  so  unlike 
the  laga  Edwardi  that  it  must  be  pronounced  distinctively  un- 
English,  and  therefore  distinctively  Norman,  and  Norman  in  a 
sense  it  was.  It  was  not  a  jurisprudence  that  had  been  trans- 
planted from  Normandy;  but  it  had  been  developed  by  a  court 
composed  of  Frenchmen  to  meet  cases  in  which  Frenchmen  were 
concerned;  the  language  in  which  men  spoke  it  was  French,  and 
in  the  end  so  far  as  it  dealt  with  merely  private  rights,  it  would 
closely  resemble  a  French  coutume." — P.  and  M.  i.,  107-108. 

"Among  the  most  permanent  and  momentous  effects  of  that  great 
event"  (the  Norman  Conquest)  "was  its  effect  on  the  language  of 
English  lawyers,  for  it  is  not  a  small  thing  that  a  law-book  produced 
in  the  England  of  the  thirteenth  century  will  look  very  like  some 
statement  of  a  French  coutume  and  utterly  unlike  the  Sachsenspiegel, 
nor  is  it  a  small  thing  that  in  much  later  days  such  foreign  influences 
as  will  touch  our  English  law  will  always  be  much  rather  French 
than  German." — Ibid,  i.,  87. 


The  Judiciary  131 

the  hard  and  fast  qualities  of  one  of  long  standing,  well 
known  and  taken  for  granted  by  the  people.  It  still 
required  the  guiding  and  sustaining  of  those  who  had 
made  it.  When  these  were  suddenly  withdrawn  by 
Henry's  death  and  his  successor's  ill-advised  quarrel 
with  the  administrative  family,  and  the  country 
experienced  a  long  period  of  civil  war  and  general 
anarchy,  the  promising  governmental  beginnings  passed 
away.  That  Henry  II.  had  a  genius  for  government, 
that  he  came  to  the  throne  while  his  grandfather's 
system  was  still  easily  remembered,  and  that  he 
himself  had  been  trained  to  understand  and  appre- 
ciate it,  were  vitally  important  conditions  of  England's 
later  institutional  growth,  especially  along  judicial  lines. 
Henry  II.  was  a  born  lawyer,  and  his  reign  stands  pre- 
eminent in  the  legal  history  of  England.  When  he  came 
to  the  throne  he  saw  lawlessness  everywhere.  His 
ambition,  like  that  of  the  Norman  kings,  was  to  gain 
for  himself  the  substance  of  power,  to  really  rule 
England.  The  first  step  was  to  bring  the  lawlessness 
to  an  end.  He  did  not  legislate  upon  any  large  scale ; 
the  creation  of  new  law  came  in  a  more  incidental 
and  unconscious  way.  To  his  mind,  new  law  was  not 
needed  so  much  as  the  enforcement  of  the  old.  But 
he  found  the  old  judicial  machinery  inadequate  for 
the  kind  of  enforcement  that  he  proposed;  it  was  not 
indeed  sufficient  to  renew  that  of  his  grandfather's 
time.  Henry  II. 's  great  work  was  the  devising  of 
new  methods  to  meet  practical  judicial  exigencies, 
and  for  this  he  displayed  a  genius  that  has  perhaps 
never  been  surpassed.  So  permanent  and  fundamental 
did  his  new  schemes  for  enforcing  the  law  prove  that 
they  profoundly  affected  the  body  of  the  law  itself, 


132        Period  of  Constitution  Making 

and  what  is  most  characteristic  in  English  law  and 
procedure  either  originated  or  was  in  some  way  fore- 
shadowed in  his  reign. 

Henry  II.'s  work  has  been  tersely  summarised  thus: 
"The  whole  of  English  law  is  centralised  and  unified 
by  the  institution  of  a  permanent  court  of  professional 
judges,  by  the  frequent  mission  of  itinerant  judges 
throughout  the  land,  by  the  introduction  of  the  'in- 
quest' or  'recognition'  and  original  writ  as  normal 
parts  of  the  machinery  nf  jnfifW  "  i  The  discussion 
of  this  work  may  be  introduced  by  briefly  describing, 
in  chronological  order  (as  far  as  that  is  known) ,  Henry's 
chief  judicial  innovations.  In  the  Constitutions  of 
Clarendon,2  1164,  we  find  a  method  of  determining 
whether  a  certain  piece  of  land,  about  which  there  was 
some  litigation  pending  between  an  ecclesiastic  and  a 
layman,  was  a  lay  holding  or  an  ecclesiastical  holding, 
or,  in  the  technical  language  of  the  time,  whether  it 
was  lay  fee  or  alms.  If  the  latter,  the  case  was  to 
be  tried  in  the  church  court ;  if  the  former,  in  the  king's 
court.  Hence  the  preliminary  question  was  one  of 
importance  and  Henry  ordained  that  it  should  be 
determined  by  putting  on  oath  twelve  men  of  the 
locality  where  the  land  lay  and  causing  them  to  state 
whether  it  was  lay  fee  or  alms.  But  this  question 
might  frequently  arise  when  it  was  preliminary  to  no 
further  question  about  the  land,  and  this  method  of 
determining  it  developed  into  a  regular  action  in  the 
royal  courts,  known  as  the  assize  utrum.  It  became 
the  normal  action,  touching  the  proprietorship  of  land, 
in  use  by  parish  priests.  There  is  some  evidence  that 
before  Henry's  time  the  same  method  had  been 

'  P.  and  M.  i.,  p.  138.  2  A.  and  S.,  document  13. 


The  Judiciary  133 

occasionally  used,  but  he  made  it  normal.  In  the  Con- 
stitutions of  Clarendon,  Henry  also  claimed  success- 
fully for  the  royal  courts  cases  involving  the  right  to 
present  to  churches,  debt  cases,  and  the  punishment 
of  criminous  clerks  who  had  been  tried  and  convicted 
in  the  church  courts. 

Two  years  later,  he  created  an  action  far  more 
important  than  the  assize  utrum.  In  the  disorderly 
state  of  society  produced  by  the  preceding  reign,  violent 
and  unjust  disseisins  were  common;  men  were  thrust 
out  of  the  seisin  or  possession  of  their  lands  by  the 
strong  hand  and  left  to  the  doubtful  and  dilatory 
justice  of  the  old  courts  to  recover  it.  To  remove  this 
abuse  and  bring  order  into  society,  Henry  determined 
to  protect  possession,  as  such,  by  a  summary  process 
in  his  own  court.  Suppose  A  had  been  recently  turned 
out  of  land,  of  which  he  had  been  in  possession,  by  B. 
A  could  now  obtain  a  writ  from  the  king  ordering  his 
justices  to  summon  twelve  men  of  the  locality  where 
the  disseisin  had  taken  place,  put  them  on  oath,  and 
ask  them  this  question:  Did  B  at  such  a  time  disseize 
A  of  such  a  holding?  If  the  answer  was  in  the  affirm- 
ative, A  was  restored  to  his  possession.  To  be  sure,  B 
may  have  had  a  better  right  to  the  land  notwithstand- 
ing A's  possession  of  it,  but  this  must  be  shown  in 
the  courts  and  a  judgment  obtained.  It  was  Henry's 
purpose  to  have  no  more  people  turned  out  of  their 
land  except  on  the  basis  of  judgment  regularly  ren- 
dered in  court.  This  new  process  was  known  as  the 
assize  of  novel  disseisin.  Old  disseisins  could  not  well 
be  taken  account  of;  an  arbitrary  date  was  fixed,  all 
disseisins  anterior  to  which  were  not  considered  novel. 
The  assize  of  novel  disseisin  was  a  possessory  assize, 


134        Period  of  Constitution  Making 

which  means  that  it  dealt  only  with  the  question  of 
possession,  not  with  the  question  of  "right.  This  was 
the  first  of  the  three  famous  possessory  assizes  created 
by  Henry.  In  the  document  known  as  the  Assize  of 
Northampton,1  1176,  is  found  the  first  intimation 
of  the  assize  of  mart  d 'ancestor  (death  of  the  ancestor) . 
The  design  of  this  assize  was  to  protect  heirs,  to  prevent 
violent  and  unlawful  confiscations  by  overlords  or 
others  upon  the  death  of  a  property  holder.  The 
principle  contained  is  this:  if  a  man  died  possessed 
of  real  estate  and  some  one  claimed  that  he  had  had  a 
better  right  to  the  property  than  the  dead  man,  he 
could  not  prevent  the  latter's  heir  from  taking  possession 
until  he  had  received  a  judgment  in  his  favour  by 
regular  legal  process.  The  question  of  fact,  whether 
the  ancestor  died  in  possession  of  the  property,  was 
answered  by  the  statement  under  oath  of  twelve 
men  of  the  locality.  The  third  possessory  assize  had 
to  do  with  the  presentation  of  clergymen  to  livings. 
Such  presentation  was  known  as  advowson.  If  a 
question  arose  as  to  which  of  two  persons  possessed 
the  advowson  of  a  certain  church,  twelve  men  of  the 
locality  were  summoned  and  put  on  oath  to  tell 
who  presented  to  this  church  last,  and  he  who  had 
done  so  was  given  the  privilege  of  presenting  this 
time.  But  the  claim  might  be  made  that,  although 
he  did  present  the  last  time,  he  had  had  no  right  to. 
In  that  case,  remedy  might  be  sought  in  the  king's 
court;  but  the  determination  of  a  question  of  best 
right  was  always  likely  to  be  a  long  process,  and,  in 
the  meantime,  the  church  must  neither  be  kept  vacant 
nor  he  who  possessed  the  advowson,  in  virtue  of  his 

1  A.  and  S.,  document  16,  article  4. 


The  Judiciary  135 

having  made  the  last  presentment,  be  turned  out  of 
his  possession.  The  new  action  in  the  king's  court 
by  which  the  possession  of  the  advowson  was  deter- 
mined was  known  as  the  assize  of  darrein  (last)  present- 
ment. 1 

Acting  on  this  same  principle  of  protecting  possession 
and  very  likely  at  about  the  same  time  that  the 
novel  disseisin  was  instituted,  Henry  began  to  in- 
terfere in  actions  determining  best  right.  He  declared 
that  no  man  could  call  in  question  a  tenant's 
right  to  his  free  tenement  without  beginning  his 
proceedings  by  obtaining  a  royal  writ.  This  writ 
was  known  as  the  writ  of  right,  and,  although  it 
did  not  necessarily  bring  the  trial  of  the  case  into 
the  king's  court,  it  gave  the  tenant  decided  advantages 
and  extended  a  royal  procedure.  The  tenant  had  his 
choice  between  accepting  the  demandant's  offer  of  the 
wager  of  battle,  or,  as  it  was  termed,  putting  himself 
upon  the  grand  assize. 2  By  this  latter  mode  of  proof, 
the  question  at  issue  was  determined  by  the  sworn 
statements  of  free  men  of  the  neighbourhood  taken 
before  the  king's  justices.  The  writ  pr®cipe,z  which 
came  into  use  in  the  same  reign,  marks  a  still  further 
royal  interference  in  proprietary  actions.  In  it,  the 
king  ordered  the  tenant  to  restore  the  land  which  the 

1  For  illustrations  of  the  three  possessory  assizes,  see  A.  and  S., 
document  24. 

2  The  word  assize,  originally  denoting  a  sitting  or  session,  was 
at  this  time  rapidly  assuming  restricted  and  somewhat  technical 
meanings.     From  a  session  of  the  Curia  Regis,  it  passed  to  the  set 
of  decrees  issued  at  that  session,  then  to  certain  actions  instituted 
by  those  decrees,  and  finally  to  the  procedure  by  sworn  inquest 
which  was  the  distinguishing  feature  of  those  actions. 

8  A.  and  S.,  document  20. 


136        Period  of  Constitution  Making 

demandant  claimed  or,  if  not,  to  appear  in  the  king's 
court  "to  show  cause  wherefore  he  has  not  done  it." 
Henry  II.  seems  to  have  issued  this  writ  whenever 
he  chose,  and  by  this  means  an  action  which  involved 
the  question  of  best  right  to  land  could  be  brought 
bodily  into  the  king's  court.  In  the  proprietary 
actions  concerning  advowson,  that  we  have  seen 
drawn  into  the  royal  court,  the  same  choice  was  given 
the  possessor  as  in  the  case  just  considered.  In  these 
instances,  the  king  was  getting  control  of,  and  changing, 
old  actions;  the  possessory  assizes  he  created. 

Henry  II. 's  third  great  judicial  innovation  was 
the  use  in  his  courts  of  a  new  method  of  learning  of 
suspected  criminals.  The  first  mention  of  the  method 
in  this  reign  was  in  another  connection.  In  article 
6  of  the  Constitutions  of  Clarendon,  the  king  was  cor- 
recting what  he  considered  an  abuse  in  the  church 
courts,  as  well  as  providing  a  means  for  bringing  to 
trial  those  whom  individuals  dared  not  accuse.  Men 
were  not  to  be  brought  to  trial  on  vague  and  unsub- 
stantiated rumour,  but  if  some  individual  were  not 
ready  to  come  forward  and  make  the  accusation, 
twelve  freemen  of  the  suspected  man's  neighbourhood 
were  to  be  put  on  oath  before  the  bishop  and  state 
their  belief  as  to  whether  he  ought  to  be  tried  for  the 
matter  in  question.  The  sheriff,  at  the  bishop's  request, 
was  to  bring  these  men  before  him.  Two  years  later, 
in  the  Assize  of  Clarendon, 1  this  machinery  of  accusa- 
tion received  its  epoch-making  extension.  It  is  a 
notable  instance  of  Henry's  boldness  and  originality 
in  dealing  with  the  difficulties  and  disorders  which 
he  found  in  the  country.  The  problem  of  bringing 

1  A.  and  S.,  document  14. 


The  Judiciary  137 

criminals  to  justice  had  remained  practically  un- 
solved to  this  time,  and  crime  of  all  sorts  had  increased 
with  impunity  in  the  preceding  reign.  With  his  hands 
freer  from  continental  matters  than  at  any  previous 
time,  Henry  now  addressed  himself  to  this  problem. 
His  method  was  to  make  regular  in  his  own  court  the 
already  slightly  used  machinery  for  accusing  sus- 
pected criminals,  and  to  impose  new  and  cruel  punish- 
ments upon  those  convicted.  Quick  and  terrible 
retribution  was  to  impend  over  every  murderer, 
robber,  or  thief,  or  those  who  harboured  such.  Twelve 
men  from  each  hundred  and  four  from  each  vill  were 
to  give  information  on  oath,  based  either  on  their  own 
knowledge  or  on  common  report,  whether  there  were  at 
that  time  in  their  localities  murderers,  robbers,  thieves, 
or  the  receivers  of  them.  The  men  thus  accused 
were  put  to  the  old  form  of  proof,  the  ordeal.  The 
Assize  of  Clarendon,  whose  first  article  instituted 
this  new  procedure  in  the  king's  courts,  was  drawn 
up  in  view  of  an  immediate  peregrination  of  the  jus- 
tices throughout  the  land.  But  the  new  method  of 
detection  was  not  confined  to  the  use  of  the  justices ; 
the  sheriffs  were  also  to  use  it,  and,  when  the  old  shire 
court  had  declined  and  lost  its  criminal  business,  it 
became  the  basis  of  a  new,  but  limited,  criminal 
jurisdiction  of  the  sheriff.1 

In  the  Assize  of  Northampton,2  ten  years  after  the 
Assize  of  Clarendon,  the  king  was  still  fighting  crime 
by  the  same  method,  but  forgery  and  arson  were  added 
to  the  crimes  that  were  thus  being  drawn  into  the 
royal  courts  and  the  punishments  were  still  more 
cruel.  It  should  be  noted  here  that  there  is  a  slight 

1  See  below,  pp.  170,  171.  2  A.  and  S.,  document  16. 


138        Period  of  Constitution  Making 

inaccuracy  in  calling  the  men  who  presented  suspects 
accusers ;  they  did  not  in  a  formal  way  accuse  any  one ; 
they  did  not  commit  themselves  to  a  belief  in  any  one's 
guilt.  Nor  were  they  witnesses;  they  gave  no  testi- 
mony touching  crime.  They  simply  constituted  a 
searching  means  of  getting  at  popular  report  and 
belief;  this  they  were  under  oath  not  to  conceal,  and 
if  such  report  reached  justice  or  sheriff  through  another 
channel  they  were  liable  to  fine  for  non-fulfilment  of 
their  duty.  The  representatives  from  the  vills  were 
probably  largely  from  the  villein  class;  they  would 
know  the  suspects  of  their  own  class  and  be  posted 
on  all  local  rumour.  They  reported  to  the  twelve 
men  of  the  hundred,  most  of  whom  would  be  knights, 
and  the  latter  made  what  use  they  chose  of  this  in- 
formation in  the  final  statement  to  the  justices. 


In  this  summary  of  Henry  II.  's  judicial  changes,  two 
institutions  have  been  mentioned  that  require  further 
explanation,  the  writ  and  the  group  of  neighbours 
put  under  oath  to  answer  questions  at  the  royal 
command.  A  few  words  will  suffice  for  the  first.  The 
general  meaning  of  the  word  writ  in  the  reign  of  Henry 
I.  has  already  been  noticed;  also  the  fact  that  it  had 
begun  to  have  a  special,  legal  use  in  connection  with 
the  written  orders  sent  out  by  the  king  to  ensure 
and  hasten  justice  in  cases  in  which  he  was  interested. 1 
In  Henry  II. 's  reign,  the  writ  was  a  well-recognised 
institution  and  began  to  differentiate  and  become 
technical.  In  each  of  the  possessory  assizes,  the  first 
step  was  to  obtain  from  the  king  a  special  form  of 

»  See  above,  pp.  128,  129. 


The  Judiciary  139 

writ  applying  only  to  that  particular  action.  There 
were  also  writs  suitable  for  opening  each  of  the 
proprietary  actions  over  which  the  king's  court  was 
getting  control.  A  proprietary  action  for  land,  the 
commonest  and  most  important,  was  begun  by  the 
writ  of  right  or  the  writ  pracipe.  As  actions  became 
regular  and  frequent,  their  appropriate  writs  became 
stereotyped  in  form;  but  as  new  actions  passed  under 
the  jurisdiction  of  the  king's  court,  new  writs  were  made 
to  suit  them,  which,  in  the  course  of  time,  became 
stereotyped  also.  These  common,  regular  forms  of 
writs  were  known  as  writs  of  course.  Writs  were  sold 
and  became  an  important  source  of  royal  revenue; 
many  people  were  willing  to  pay  well  for  the  better 
law  and  procedure  of  the  king's  court.  The  drawing 
up  and  issuing  of  writs  was  a  difficult  and  important 
function,  which,  already  in  the  twelfth  century,  was 
being  assumed  by  the  Chancellor  and  his  staff.  Every 
civil  case  tried  in  the  royal  courts  originated  with  the 
purchase  of  the  appropriate  writ;  hence  these  writs 
have  become  known  as  original  writs  to  distinguish 
them  from  writs  issued  for  any  purpose  after  the  actions 
had  begun.  The  manufacture  of  new  writs  by  the 
^Chancery  was,  under  a  strong  king,  a  most  adaptable 
and  efficient  means  of  extending  the  royal  jurisdiction.  * 

1  "The  metaphor  which  likens  the  chancery  to  a  shop  is  trite; 
we  will  liken  it  to  an  armory.  It  contains  every  weapon  of 
medieval  warfare  from  the  two-handed  sword  to  the  poniard.  The 
man  who  has  a  quarrel  with  his  neighbour  comes  thither  to  choose 
his  weapon.  The  choice  is  large;  but  he  must  remember  that 
he  will  not  be  able  to  change  weapons  in  the  middle  of  the  combat 
and  also  that  every  weapon  has  its  proper  use  and  may  be  put 
to  none  other.  If  he  selects  a  sword,  he  must  observe  the  rules 
of  sword-play;  he  must  not  try  to  use  a  cross-bow  as  a  mace." — 
P.  and  M.  ii.,  561. 


140        Period  of  Constitution  Making 

In  this  lies  the  great  importance  of  the  original  writ 
in  the  judicial  history  of  the  twelfth  and  early  thir- 
teenth centuries. 

The  group  of  neighbours  who  gave  the  king  infor- 
mation under  oath  will  be  readily  recognised  as  a 
primitive  jury.  It  is  necessary  here  to  make  some 
inquiry  into  the  origin  and  early  history  of  the  jury 
system.  When  William  the  Conqueror  wanted  to  get 
information  about  some  local  matter,  commonly  some- 
thing relating  to  the  value  of  land  as  bearing  on  the 
royal  revenue,  he  sent  an  official  to  the  locality  or  an 
order  to  a  local  official  to  summon  a  number  of  men 
who  would  be  likely  to  know  what  was  wanted,  put 
them  on  oath,  and  question  them.  Their  answers 
were  written  down  and  sent  to  him.  This  process 
was  known  as  inquisitio,  which  may  be  translated 
inquest  or  inquiry.  It  was  thus  that  William  gathered 
the  vast  mass  of  local  data  contained  in  the  Domesday 
Book.  This  sworn  inquest  was  the  institutional  germ 
out  of  which  the  modern  jury  and  the  House  of  Com- 
mons have  grown. 

It  has  naturally  been  a  question  of  great  interest 
whether  Williani  made  use  here  of  an  institution  which 
was  Anglo-Saxon  in  origin  or  one  which  he  brought 
with  him  from  the  continent.  English  scholars  have 
been  loath,  in  this,  as  in  the  case  of  some  other  in- 
stitutions, to  abandon  a  native  origin.  But  at  present 
no  scholar  denies  that  the  jury  came  from  the  conti- 
nent ;  William  was  simply  continuing  to  use  in  England 
a  machinery  for  getting  local  information  which  he 
and  preceding  dukes  had  been  accustomed  to  use 
in  Normandy.  Like  many  other  Norman  institutions, 
this  had  been  derived  from  the  Prankish  state.  It  is 


The  Judiciary  141 

known  that  the  Carolingian  sovereigns  of  the  eighth 
century  used  this  method  in  learning  about  lands  and 
permanent  rights.  Between  this  eighth-century  Prank- 
ish institution,  then,  and  that  of  the  first  Norman  king  of 
England  there  was  an  unbroken  line  of  connection. 

If  the  inquiry  into  origins  be  pushed  a  step  further, 
a  difficult  problem  is  encountered.  It  may  be  stated 
to  begin  with  that,  like  all  Frankish  institutions,  the 
sworn  inquest  was  either  primitively  Teutonic  or 
else  Roman  in  origin.  All  Teutonic  peoples,  of  whose 
early  customs  we  have  any  considerable  knowledge, 
had  institutions  which  bore  a  superficial  resemblance 
to  the  one  under  discussion.  In  dealing  with  the  hun- 
dred and  shire  courts  of  the  Anglo-Saxon  period,  three 
institutions  have  been  briefly  described  that  must  be 
mentioned  again  here. 1  These  were  the  suitors  to  the 
local  courts  who  acted  as  judges,  the  compurgators, 
and  the  sworn  witnesses.  Their  analogues  are  found 
among  other  Teutonic  peoples,  and  in  looking  for  a 
possible  germ  of  the  jury  these  institutions  first 
attract  attention.  Here  were  representative  men  of 
the  community,  and,  in  both  civil  and  criminal  suits, 
their  neighbours'  fate  lay  largely  in  their  hands.  Are 
they  not,  then,  like  a  jury?  Although  this  is  looking 
at  the  matter  in  a  summary  and  superficial  way,  there 
is  a  slight  element  of  truth  in  the  suggestion.  The 
developing  English  jury  of  the  thirteenth  and  fourteenth 
centuries  derived  some  of  its  sanction  and  spirit  from 
the  Teutonic  notion  of  a  popular  and  local  source  of 
justice,  which  doomsmen,2  compurgators,  and  sworn 

1  See  above,  pp.  21,  24-26. 

*  The  name  given  to  the  group  of  suitors  who  often  exercised  the 
judging  function  for  the  whole  body. 


142        Period  of  Constitution  Making 

witnesses  all  illustrate.  But  this  is  a  matter  quite 
apart  from  the  question  of  the  jury's  institutional 
origin.  In  returning  to  that,  it  will  be  useful  to  con- 
trast briefly  the  sworn  inquest  of  William  I.  with  these 
three  institutions.  The  suitors  of  the  local  courts 
were  judges  largely  in  their  discretionary  application 
of  the  proofs  to  the  cases  in  hand.  The  compurgators 
were  men  who  swore  with  the  plaintiff  or  defendant, 
basing  the  oath  however  upon  no  knowledge  of  the 
facts  of  the  case.  The  witnesses  were  brought  into 
court  to  swear  to  a  set  formula,  the  nature  of  which 
they  knew  in  advance.  The  inquest  was  a  royal 
institution  by  which  men  of  a  locality  answered  upon 
oath  questions  put  to  them  by  some  one  acting  under 
the  royal  command,  and  about  a  matter,  usually  relating 
to  land  and  revenue,  in  which  the  king  was  interested. 
The  contrast  is  sufficiently  obvious  to  need  no  insist- 
ence. It  can  not,  perhaps,  be  dogmatically  denied 
that  the  early  Prankish  kings  had  adapted  to  their 
own  use  and  developed  the  Prankish  institution  that 
corresponded  to  the  Anglo-Saxon  sworn  witnesses,  but 
there  is  no  evidence  to  prove  it.  There  is  no  possibility 
of  the  inquest's  having  been  derived  from  either  of  the 
other  two  institutions. 

There  existed,  however,  in  the  later  Roman  empire 
a  custom  the  same  in  all  essentials  as  the  one  whose 
origin  we  are  discussing.  It  went  by  the  same  name, 
inquisitio,  was  used  by  the  central  government,  and 
for  the  same  general  purpose.  For  the  interval  between 
the  fall  of  the  empire  and  the  eighth  century  no  evi- 
dence has  been  found,  so  that  it  cannot  be  positively 
asserted  that  this  was  its  origin;  but  in  view  of  the 
amount  of  borrowing  of  this  sort  that  is  known  to  have 


The  Judiciary  M3 

taken  place,  it  is  more  probable  that  the  Prankish 
kings  took  the  institution  from  Rome  in  just  the 
form  in  which  they  so  long  used  it  than  that  they 
made  over  a  practice  of  the  native,  local  courts  into 
an  instrument  of  central  power. 

The  regret  which  some  writers  have  evidently  felt 
at  having  to  abandon  an  Anglo-Saxon,  and  even  a 
Teutonic,  origin  for  the  jury  seems  uncalled  for  when 
the  matter  is  properly  considered.  The  sworn  inquest 
was  an  existing  institution  which  English  kings, 
courts,  and  people  chanced  to  seize  upon,  and  which, 
in  the  course  of  centuries  and  through  many  unfore- 
seen influences,  they  made  over  into  something  that 
was  in  many  important  respects  radically  different. 
The  primitive  inquest  was  a  piece  of  administrative 
machinery  which  had  nothing  to  do  with  a  court  system, 
central  or  local;  throughout  its  known  history,  it  had 
been  an  instrument  of  royal  power,  and  probably 
often,  as  in  the  hands  of  William  the  Conqueror,  of 
royal  oppression.  The  matured  judicial  jury  has  done 
its  service  and  won  its  renown  in  safeguarding  the 
liberties  of  the  people  from  the  encroachments  of 
monarchy;  while  the  jury  as  developed  into  the  House 
of  Commons  has  become  the  mainspring  of  the  English 
constitutional  system.  On  the  continent,  the  sworn 
inquest  had  no  such  development.  From  Charlemagne 
to  William  the  Conqueror,  it  had  remained  almost 
unchanged,  and  everything  which  has  since  made  it 
a  notable  or  admirable  institution  it  has  gained  on 
English  soil. 

There  was  little  change  in  the  inquest  until  the 
reign  of  Henry  II.  William  I.  and  succeeding  kings 
had  occasionally  used  it  in  connection  with  judicial 


144        Period  of  Constitution  Making 

matters,1  but  there  was  no  regularity  or  special  purpose 
in  such  use;  if  the  king  were  interested  in  a  certain 
case  and  wanted  to  get  the  facts  involved,  he  would 
use  this  method,  just  as  in  other  subjects  of  local  inquiry. 
When  Henry  II.  made  use  of  it  in  determining  whether 
a  disputed  holding  were  free  alms  or  lay  fee,  he  was 
not  applying  it  to  a  new  subject  matter ;  but  when  this 
preliminary  procedure  in  the  king's  court  grew  into  the 
assize  utrum,  this  royal  method  of  ascertaining  the 
truth  necessarily  became  the  most  important  part  of 
the  procedure  in  the  new  action.  The  same  thing 
was  true  of  the  other  new  actions  of  this  reign;  and, 
in  the  old  actions  that  were  drawn  into  the  king's 
court,  the  jury  trial  became  optional  with  one  or  both 
parties  to  the  suit.  It  became  quite  naturally  the 
normal  method  of  trial  in  civil  cases  in  the  king's  court, 
superseding  the  old  proofs. 

The  jury  of  accusation,  however,  the  jury  which 
presented  suspected  murderers,  robbers,  and  thieves, 
seems  something  new,  for  it  did  not  answer  the  old 
questions  about  property  or  revenue ;  it  was  essentially 
the  same  machinery,  but  employed  upon  a  different 
subject-matter.  It  was  not  however  new,  for,  though 
not  the  normal  use  of  the  inquest,  the  Prankish  kings 
of  the  ninth  century  had  employed  the  sworn  state- 
ments of  men  in  the  localities  to  find  out  about  delin- 
quent officials  or  serious  crimes,  matters  that  threatened 
the  country's  peace.  A  use  of  the  inquest  similar 
to  this  had,  at  some  time,  passed  into  the  Prankish 
church,  probably  by  royal  grant;  and,  in  certain  places, 
this  so-called  synodal  jury  had  become  a  well-known 
institution.  There  is  no  conclusive  evidence,  however, 

>  For  an  early  example,  see  A.  and  S.,  document  a. 


The  Judiciary  145 

that  an  accusing  jury  had  existed  in  either  England 
or  Normandy  before  the  time  of  Henry  II.1  In  the 
Constitutions  of  Clarendon,  is  a  provision  which  sug- 
gests an  accusing  jury  for  cases  in  the  church  courts 
where  ' '  the  accused  be  such  that  no  one  will  or  dares 
to  accuse  them."  A  similar  provision,  applying  to  the 
Norman  church,  had  been  made  in  1159.  In  these 
instances,  Henry  was  probably  reviving  a  custom  that 
had  fallen  into  disuse.  The  great  thing  that  he  did 
in  the  Assize  of  Clarendon  was  to  incorporate  this 
decadent  piece  of  procedure  in  his  own  rapidly  growing 
court.2  Since  then,  there  has  always  been  in  the 
English  court  system  a  jury  for  presenting  criminals ; 
it  was  the  foundation  of  the  modern  grand  jury. 

There  were  thus  in  the  reign  of  Henry  II.  three  clearly 
distinguishable  uses  of  the  jury:  the  old,  non-judicial 
use,  in  which  the  king  employed  the  sworn  inquest 

1  Regarding  the  famous  and  anomalous  case  of  the  twelve  senior 
thegns  in  the  reign  of  Ethelred  II .,  Maitland  says : ' '  There  is  however 
one  law  that  must  cause  some  difficulty.     It  is  a  law  of  Ethelred 
the  Unready,  published,  so  it  would  seem,  in  the  year  997  and 
applicable  only  to  the  Danish  district.     In  it  we  hear  how  a  moot 
is  to  be  held  in  every  wapentake,  and  how  the  twelve  eldest  thegns 
are  to  go  out  with  the  reeve  and  to  swear  upon  the  relic  that  he  puts 
into  their  hands  that  they  will  accuse  no  innocent  and  conceal 
no  guilty  man.     Certainly  this  looks  like  a  jury  of  accusation;  but 
the  context  will  make  us  doubt  whether  we  have  here  a  law  of  any 
generality.     There  seem  however  to  be  good  reasons  for  believing 
that  some  of  the  Scandinavian  nations  came  by  a  route  of  their  own 
to    something    that  was  very  like  the    jury.      .      .      .     We    can- 
not say  a  priori  that  there  is  only  one  possible  origin  for  the  jury, 
we  cannot  even  say  that  England  was  unprepared  for  the  intro- 
duction of  this  institution;  but  that  the  Norman  duke  brought  it 
with  him  as  one  of  his  prerogatives  can  hardly  be  disputed." — 
P.  and  M.  i.,  142,  143. 

2  A  suggestion  of  what  lead  Henry  to  do  this  and  what  gave 
his   machinery  of   accusation   its   particular   form   will   be   found 
below,  pp.  169,  i7o. 


146        Period  of  Constitution  Making 

to  get  local  information;  the  trial  jury  in  the  civil 
cases  which  the  king  was  drawing  into  his  courts;  the 
accusing  jury.  This  reign  may  be  regarded  as  the 
starting  point  of  the  history  of  the  judicial  jury  in 
England.  Two  main  changes  or  developments  which 
appeared  soon  afterwards  have  left  the  institution  sub- 
stantially as  it  exists  to-day.  The  first  of  these  was 
the  evolution  of  the  trial  jury  in  criminal  cases;  the 
second,  the  process  by  which  trial  juries  became  judges 
of  fact  capable  of  protecting  the  liberty  of  the  people. 
The  need  of  a  jury  to  try  criminals  was  distinctly 
felt  in  Henry  II. 's  reign.  When  accusing  juries 
presented  murderers  and  others  suspected  of  serious 
crimes  before  the  royal  courts,  the  king  found  himself 
unwilling  to  abide  wholly  by  the  result  of  the  old  form 
of  proof,  the  ordeal.  His  object  was  to  rid  the  country 
of  criminals  and  he  did  not  propose  to  be  deterred  by 
an  antique  procedure  which  shifted  the  responsibility 
of  finding  the  truth  from  man  to  God.1  After  ten 
years'  experience  in  dealing  with  criminals  in  his 
courts,  Henry  instructed  his  justices  in  these  words: 

And  if  he  [the  suspect]  shall  have  been  to  the  water 
whole  he  shall  furnish  sureties  and  remain  in  the  kingdom 
unless  he  has  been  accused  of  murder  or  other  infamous 
felony  by  the  community  of  the  county  and  of  the  lawful 
knights  of  the  country,  of  which  if  he  has  been  accused 
in  the  said  manner,  although  he  has  been  to  the  water 
safely,  nevertheless  within  forty  days  he  shall  depart 
from  the  realm,  and  take  with  him  his  chattels  saving 
the  rights  of  his  lords,  and  at  the  mercy  of  the  lord  king 
he  shall  abjure  the  realm.2 

1  See  above,  p.  26 

*  A.  and  S.,  p.  21.     See  also  article  14  of  the  Assize  of  Clarendon. 


The  Judiciary  147 

This  not  only  shows  dissatisfaction  with  the  ordeal, 
but  gives  a  hint  of  what  may  in  time  take  its  place; 
it  was  because  a  man's  neighbours  believed  in  his  guilt 
that  he  was  to  be  banished;  and,  when  neighbours 
were  regularly  and  formally  summoned  to  state  the 
facts,  the  trial  jury  in  criminal  cases  was  existent. 

It  is  impossible  to  give  a  detailed,  chronological 
account  of  how  the  new  procedure  grew.  Our  know- 
ledge of  how  criminal  actions  were  conducted  in  the 
late  twelfth  and  early  thirteenth  centuries  is  scanty. 
But  this  was  pre-eminently  the  time  of  jury  growth; 
the  simple  but  adaptable  inquest  machinery  was  being 
used  by  the  king  for  very  many  purposes,  and  it  would 
have  been  strange  if  some  form  of  it  had  not  finally 
met  the  new  want  which  was  being  felt  in  the  criminal 
procedure.  For  a  long  time,  there  was  no  conscious 
creating  of  a  new  form  of  jury,  but  a  tentative  use  of 
one  or  more  of  the  old  forms.  The  presenting  juries 
of  the  townships  have  already  been  mentioned;  it 
early  seemed  that  such  juries  from  the  four  townships 
adjacent  to  the  scene  of  the  crime  would  be  a  fit 
body  to  traverse  the  presentment  which  perhaps  they 
had  already  had  their  share  in  making.  The  duties 
and  methods  of  a  new  local  official,  the  coroner, *  may 
have  furthered,  perhaps  suggested,  this  practice.  The 
coroner  early  ceased  to  be  a  justice,  even  in  petty  cases, 
but  his  right  to  empanel  a  jury  remained  a  relic  of 
his  original  and  higher  position.  He  became  a  keeper 
of  the  pleas  of  the  crown,2  by  which  was  meant  that 

1  See  below,  pp.  187-190. 

2  The  idea  of  crown  pleas  appears  for  the  first  time  with  any 
distinctness  in  the  reign  of  Cnute.     A  small  number  of  serious  cases 
was  reserved  for  the  king,  but  it  is  hard  to  find  a  principle  upon 
which  the  choice  was  made,  except,  perhaps,  a  consideration  of 


148        Period  of  Constitution  Making 

he  held  preliminary  inquiries  and  kept  records  that 
were  to  be  used  later  by  the  visiting  justices.  Now 
the  juries  which  the  coroners  had  used  in  such  in- 
quests were  supposed  to  have  made  some  investigation 
of  the  crimes;  they  would  naturally  have  been  drawn 
from  the  adjacent  townships,  and  might  be  resummoned 
to  give  their  information  to  the  justices.  It  was  also 
not  uncommon  to  hold  the  accusing  jury  of  the  hun- 
dred to  answer  concerning  the  guilt  or  innocence  of 
those  whom  they  had  presented.  It  was  commoner, 
perhaps,  to  turn  to  the  jury  of  another  hundred  and 
make  it  the  traverse  or  petit  jury  in  these  cases ;  but 
as  it  would  not  be  likely  to  know  the  facts,  it  became, 
during  the  reign  of  Henry  III.,  the  practice  to  join 
several  juries  together  and  regard  them  as  one  trial 
jury.  These  were  often  the  hundred  jury  that  had 
presented  the  criminal,  the  jury  of  some  other  hundred, 
and  the  juries  from  the  four  adjacent  townships.  Prob- 
ably from  very  early  times  there  was  some  sense  of  the 
impropriety  in  calling  upon  a  man's  indictors  to  pro- 
nounce upon  his  guilt  or  innocence.  Yet  it  must  not 

the  revenue  to  be  gained  from  the  fines  and  the  limits  imposed 
by  the  old  conception  of  the  king's  peace.  The  Norman  dukes 
also  had  their  reserved  cases.  In  the  private  and  unauthorised 
collection  of  laws  in  Henry  I.'s  reign,  known  as  the  Leges  Henrici 
Primi,  there  is  a  long  and  very  heterogeneous  list  of  crown  cases, 
and,  by  the  large  grants  of  jurisdiction  which  they  sometimes  made, 
the  Norman  kings  of  England  certainly  implied  that  they  possessed 
a  very  inclusive  jurisdictional  power.  With  the  drawing  of  the 
important  criminal  cases  into  the  royal  court  in  the  reign  of  Henry 
II.,  the  idea  was  rapidly  taking  shape  that  these  crimes,  wherever 
and  whenever  committed,  were  breaches  of  the  king's  peace.  The 
king's  peace  was  becoming  coterminous  with  the  country,  and  all 
important  breaches  of  it  were  crown  cases.  Fcr  the  older  concep- 
tion of  the  king's  peace,  see  above,  pp.  30,  31,  33;  for  further  dis- 
cussion, P.  and  M.  i.,  44-46. 


The  Judiciary  149 

be  forgotten  that  the  presenting  juries  did  little  more 
than  state  popular  rumour  and  might  thus  address 
themselves  to  the  second  duty  quite  disinterestedly. 
It  was  not  till  1352  that  a  statute  was  passed  barring  a 
man's  indictors  from  serving  upon  the  jury  that  tried 
him. 

The  use  of  a  second  jury  in  criminal  cases  at  first 
merely  supplemented  the  old  procedure;  it  served  to 
bring  out  more  clearly  the  accused's  local  reputation. 
Formally  the  ordeal  was  still  the  proof,  but  if  a  man 
came  through  the  ordeal  successfully  after  a  jury  of  his 
neighbours  had  pronounced  him  guilty,  it  went  hard 
with  him.  The  order  of  the  pope  in  1215  that  the 
clergy  should  no  longer  take  part  in  the  ceremony 
of  the  ordeal  met  an  immediate  and  complete  response 
in  England ;  the  ordeal  disappeared  forever. 1  This 
meant  no  exceptional  obedience  to  the  pope  on  the 
part  of  England,  though  the  last  year  of  John  and 
the  minority  following  was  a  time  of  great  papal  influ- 
ence; but  it  meant  that  the  English  courts  had  a  new 
and  better  procedure  ready  to  put  in  the  place  of 
the  old.  It  was  no  small  thing,  however,  to  make  such 
a  complete  and  conscious  change  at  that  early  date, 
and  for  a  long  time  there  is  evidence  of  the  perplexities 
and  difficulties  that  it  cost.  Although  it  had  appar- 
ently recommended  itself  as  a  more  rational  method 
of  proof,  the  jury  was  nevertheless  regarded  as  a  lower 
type ;  it  was  not  of  immemorial  antiquity  like  the  ordeal, 
and  it  rested  on  a  purely  human  basis.  Largely  on 
these  grounds,  it  appears,  grew  the  idea  that  it  could  not 

1  This  did  not  include  the  trial  by  battle,  which  was,  in  principle, 
a  true  ordeal,  for  the  clergy  had  no  official  connection  with  the 
ceremonies  attending  it. 


Period  of  Constitution  Making 

be  forced  upon  any  one  as  a  method  of  proof.  Except 
in  the  four  recently  created  assizes,  in  which  a  man 
consciously  chose  jury  trial  when  he  selected  his  assize, 
parties  to  a  civil  suit  had  the  option  of  a  jury  or  one 
of  the  older  forms  of  trial.  These  were  compurgation 
or  trial  by  battle,  according  to  the  nature  of  the  suit. 
In  the  case  of  a  felony  in  which  a  man  was  brought  to 
trial  by  the  appeal  of  some  individual,  the  appellor 
offered  trial  by  battle  and  the  appellee  might  either 
accept  it  or  put  himself  upon  the  country,  as  choosing 
jury  trial  was  usually  termed.1  But  when  a  man 
was  indicted  at  the  suit  of  the  king,2  that  is,  presented 
to  the  justices  or  the  sheriff  by  a  jury,  there  was 
no  option  left  after  the  ordeal  was  abolished.  The 
state  was  confronted  by  what  seemed  an  insoluble 
problem;  the  prejudices  just  mentioned  made  it  loath 
to  force  a  man  to  put  himself  upon  the  country,  and  yet, 
if  he  refused  to  do  so,  there  was  no  form  of  proof 
available.  The  experiment  was  tried,  in  1221,  of 
forcing  jury  trial  upon  notorious  felons,  but  the  com- 
pleteness with  which  it  was  abandoned  shows  how 
thoroughly  it  ran  counter  to  the  ideas  of  the  time. 
The  state  handled  minor  suspects,  who  refused  a  jury, 
by  forcing  them  to  give  pledge  or  even  leave  the  country ; 

1  This  option  was  gradually  acquired  during  the  thirteenth 
century. 

J  "The  judges  began  to  favour  the  indictment  and  to  discourage 
the  appeal  by  all  possible  means.  They  required  of  the  accuser  a 
punctilious  observance  of  ancient  formalities,  and  would  quash 
his  accusation  if  he  were  guilty  of  the  smallest  blunder.  Still 
throughout  the  middle  ages  we  occasionally  hear  of  battles  being 
fought  over  criminal  cases." — Maitland  in  Train's  Social  England 
i.,  293.  See  further  in  this  reference  for  an  interesting  account  of 
the  famous  Abraham  Thornton  case  in  1818  and  the  abolishing 
of  trial  by  battle  in  1819. 


The  Judiciary  151 

but  it  was  not  considered  that  a  conviction  had  taken 
place.  Thus  when  suspected  felons  refused  a  jury,  they 
remained  technically  un.convicted  and  their  property 
could  not  be  confiscated  nor  their  blood  attainted; 
the  consequences  of  their  crimes  could  not  be  visited 
upon  their  heirs.  There  was  thus  a  strong  motive  for 
continued  refusal  in  instances  where  conviction  was  a 
foregone  conclusion.  In  these  cases  pledge  or  exile 
was  insufficient ;  the  state  could  do  nothing  but  keep 
the  men  in  prison  until  they  consented  to  put  them- 
selves upon  the  country.  There  was  reason  therefore 
for  making  that  imprisonment  as  terrible  as  possible, 
and  from  the  "strong  and  hard  "  prison  of  the  thirteenth 
century  there  came  by  a  natural  evolution  the  horrible 
peine  forte  et  dure  which  was  not  abolished  until  1772. 
It  should  be  understood  that,  in  the  vast  majority 
of  cases,  those  indicted  for  crime  willingly  accepted 
jury  trial. 

We  come  now  to  the  second  important  matter  in 
jury  history  subsequent  to  Henry  II. 's  reign.  How 
did  it  come  to  pass  that  the  judicial  jury  became 
in  England  a  means  of  protecting  the  liberty  of  the 
people,  while  on  the  continent  the  same  parent  stock 
brought  forth  the  canonical  inquisition,  an  institution 
so  opposite  in  character?  The  early  thirteenth  cen- 
tury was  a  critical  time  for  the  English  jury ;  the  young 
institution  was  very  pliable,  and  the  influences  and 
circumstances  of  that  time  largely  determined  its 
whole  future  history.  It  but  narrowly  missed  travelling 
the  road  of  its  continental  cousin.  The  most  prominent 
trait  of  the  primitive  jury,  judicial  or  non-judicial, 
was  its  supposed  or  actual  knowledge  of  the  facts  in- 
quired into;  and  when  such  a  jury  became  a  regular 


1 52        Period  of  Constitution  Making 

part  of  judicial  procedure,  one  is  likely  to  think  that 
it  was  nothing  more  than  a  group  of  witnesses  and 
that  the  justices  were  engaged  in  obtaining  and  weigh- 
ing testimony.  A  good  many  details  might  be  collected 
from  the  early  practice  in  favour  of  such  a  view,  and 
if  the  judges  had  at  that  time  been  a  little  more  inclined 
to  deal  with  the  jurors  separately,  questioning  them 
solely  on  the  facts  of  the  case  and  keeping  to  themselves 
all  discretionary  or  judging  functions,  there  would 
have  been  an  inquisition  in  England  instead  of  a 
jury.  But  though  it  may  be  granted  that  the  early 
English  jury  was  nine-tenths  witness,  the  one-tenth 
something  else  was  very  important,  for  it  was  this 
which  received  the  development.  It  is  the  purpose 
here  to  inquire  what  this  element  was  and  why  it 
persisted  and  grew.1 

Except  in  the  four  petty  assizes,  where  it  was  an 
original  and  necessary  part  of  the  procedure,  the 
jury  was  at  first  regarded  merely  as  one  among  other 
methods  of  proof.  If  the  litigants  chose  it,  they  must 
abide  by  the  result ;  and  the  court  would  no  more  have 
thought  of  inquiring  into  the  action  of  the  jury  than 
of  questioning  or  criticising  compurgation.  The  thought 
of  the  judges  was  to  reach  a  conclusion  by  some  of 
the  known  methods  of  proof  rather  than  to  inquire 
into  the  processes.  They  deemed  the  jury  in  some 
respects  preferable  to  the  older  proofs,  but  the  habit 
of  thought  was  still  too  much  dominated  by  the 
immemorial  practice  of  appealing  to  supernatural 
powers  in  judicial  matters  for  rational  distinctions 
to  have  become  prominent.  The  older  proofs  furnished 

1  The  discussion  of  this  subject  is  based  upon  the  admirable 
account  in  P.  and  M.  ii.,  622-627. 


The  Judiciary  153 

speedy  and  unequivocal  answers ;  the  jury  was  expected 
to  do  the  same.  It  would  have  been  impious  to  question 
how  God  reached  the  conclusions  which  he  manifested 
in  the  trial  by  battle  or  the  older  ordeals;  there  was 
little  disposition  to  inquire  how  the  jury  reached  its 
unanimous  answer.  It  was  usually  speedily  reached; 
it  was  the  "voice  of  the  country";  the  litigants  had 
placed  themselves  upon  the  country;  it  was  what  was 
wanted.  The  jurors  drawn  from  a  limited  district,  the 
neighbours  of  the  parties  to  the  suit,  embodied  in  them- 
selves when  they  came  into  court  something  that  would 
have  seemed  more  valuable  to  the  court,  could  the 
comparison  have  been  made,  than  the  product  of  any 
rational  taking  and  weighing  of  evidence.  The  fact 
that  the  jury  reached  its  verdict  in  its  own  way  and 
returned  a  complete  and  final  answer  shows  that  there 
was  likely  to  be  at  least  a  slight  judging  element  in  what 
it  did.  Moreover  the  jurors  were  not  to  be  content  with 
the  knowledge  of  the  facts  which  they  happened  to 
have  when  summoned ;  they  were  expected  to  make  in- 
quiries and  inform  themselves  as  best  they  could  before 
coming  into  court.  This  entailed  some  weighing 
and  judging  of  evidence.  They  were  not  mere  mechan- 
ical transmitters  of  fact  like  modern  witnesses,  but 
were  embryonic  "judges  of  fact"  from  the  outset. 

Upon  these  characteristics  depended  the  triumph, 
in  the  course  of  the  fourteenth  century,  of  the  principle 
of  unanimity  in  the  jury.  Its  early  position  as  one 
among  several  kinds  of  proof  tended  to  make  it  like 
them;  if  they  spoke  unequivocally,  the  jury  must. 
"The  veredictum  patrics  is  assimilated  to  the  judi- 
cium  Dei."  Moreover,  the  jury  being  the  voice  of 
the  country,  that  itself  implied  unanimity.  The 


154        Period  of  Constitution  Making 

majority  dogma  was  not  clearly  formulated  for  two 
centuries  yet,  and  if  the  country  were  to  speak,  it  must 
be  through  unanimity.  And  the  judging  element 
favoured  a  unanimous  verdict,  for  the  juror  did  not 
have  to  stand  strictly  upon  his  own  personal  know- 
ledge; he  might  be  persuaded  to  change  his  opinion, 
or  he  might  accept  the  fuller  information  of  his  asso- 
ciates. The  judges  regarded  unanimity  not  only  as  the 
most  natural  but  the  most  convenient  requirement, 
and  often  used  much  pressure  to  obtain  it.  There 
were  many  exceptions  to  the  rule  in  early  times  but 
the  tendency  was  decidedly  in  favour  of  unanimity, 
and  that  as  the  result  of  the  primitive  characteristics 
of  the  English  jury  and  the  circumstances  of  its  early 
use  in  the  courts. 

It  may  be  impossible  to  state  fully  why  the  traits 
of  the  jury  just  discussed  persisted  and  triumphed 
over  those  which  at  first  seemed  more  obvious  and 
important.  Two  considerations,  however,  may  be 
brought  forward  with  confidence.  England  was  quite 
uniformly  orthodox  during  centuries  when  heresy  trials 
were  growing  frequent  upon  the  continent.  The 
peculiar  nature  of  the  crime  of  heresy  led  very  readily 
to  the  separate  examination  of  witnesses  and  the 
secret  collection  of  testimony  accompanied  by  torture — 
an  inquisitorial  procedure.  Had  such  trials  been 
common  in  England,  the  jurors  might  soon  have  be- 
come mere  witnesses,  and  there  would  have  been  in 
the  hands  of  the  state  an  engine  of  tyranny  instead 
of  an  institution  which  guarded  the  liberty  of  the  sub- 
ject. The  second  and  more  important  consideration 
is  that  the  possessory  assizes  were  made  with  a  jury 
as  a  necessary  part  of  the  procedure,  and  that  too  a 


The  Judiciary  155 

jury  tinged  with  those  traits  of  the  older  forms  of 
proof  that  we  have  been  noting.  Now  these  assizes 
exactly  met  the  needs  for  which  they  were  designed; 
they  grew  very  rapidly  and  struck  deep  root  in  English 
soil.  From  these,  the  jury  spread  quickly  but  volun- 
tarily into  other  civil  actions. 1  At  the  critical  period 
of  jury  history  in  the  thirteenth  century,  when  it  was 
being  determined  whether  it  should  triumph  over 
other  forms  of  proof,  and,  having  so  triumphed,  what 
should  be  the  line  of  its  own  development,  its  necessary 
use  and  its  character  in  the  possessory  assizes  were 
decisive  influences.  These  popular  actions  were  work- 
ing by  their  very  presence,  tacitly  but  powerfully, 
for  the  spread  of  the  jury,  and  that  jury  like  their  own. 
"Much  was  at  stake  during  those  wakeful  nights  in 
which  the  Novel  Disseisin  was  being  fashioned." 

If,  then,  juries  were  to  be  finally  judges  of  fact  and 
not  witnesses,  there  would  soon  come  a  time  when  true 
witnesses  would  be  needed.  It  was  far  into  modern 
times  before  the  idea  entirely  disappeared  that  the  jury 
should  itself  furnish  at  least  a  part  of  its  facts.  Through- 
out the  thirteenth  and  even  in  the  fourteenth  century, 
care  was  often  taken  that  some  of  the  jurors,  owing  to 
the  locality  or  class  whence  they  were  drawn,  should 
have  information  which  would  be  useful  in  the  trial  and 
which  they  were  expected  to  impart  to  their  fellows. 
But  this  had  to  be  supplemented  more  and  more ;  the 
apparatus  of  informing  the  empanelled  jury  was  de- 
veloping, and  the  witness  was  an  important  part  of  it. 

1  "  Before  the  twelfth  century  was  at  an  end,  the  inquest  in  one 
form  or  another — sometimes  it  was  called  an  assize,  sometimes 
a  jury — had  become  part  of  the  normal  procedure  in  almost  every 
kind  of  civil  action." — Maitland  inTraill's  Social  England  i.,  289. 


156        Period  of  Constitution  Making 

In  the  earliest  practice  of  the  thirteenth  century, 
it  is  possible  to  discern  a  shadowy  distinction  between 
what  we  would  call  a  juror  and  a  witness;  but  this 
was  long  before  they  were  distinguished  in  name  or 
consciously  placed  in  separate  categories,  when,  as  it 
has  been  expressed,  the  witness  served  on  the  jury. 
But  as  the  jurors  became  judges  of  fact,  this  dis- 
tinction of  necessity  grew;  it  was  a  century  and  a  half 
however  before  it  was  clearly  understood  and  stated. 
Of  the  intervening  steps,  we  know  almost  nothing. 
Shortly  before  the  middle  of  the  fourteenth  century, 
it  was  ordered  that  witnesses,  in  contradistinction 
from  jurors,  were  not  to  be  challenged;  that  witnesses 
"should  say  nothing  but  what  they  know  as  certain, 
that  is,  what  they  see  and  hear,"  while  jurors,  placed 
under  no  such  limitation,  were  "to  tell  the  truth  to 
the  best  of  their  knowledge."  This  must  have  ended 
any  serious  confusion  between  the  two. 

In  this  connection  care  must  be  taken  not  to  ascribe 
to  the  medieval  jury  too  beneficent  and  modern  a 
role.  The  jury  to-day  seems  thoroughly  democratic; 
by  it  a  man  receives  the  verdict  of  his  equals;  but 
the  state  of  society  made  this  impossible  in  the  middle 
ages.  Except  in  the  manorial  courts,  jurors  could 
only  be  drawn  from  the  class  of  freeholders  and  the 
whole  mass  of  the  peasantry  was  below  that;  in  civil 
actions  in  the  manorial  courts,  the  peasant  might  have  a 
jury  made  up  in  part,  or  occasionally  wholly,  of  his 
class,  but  in  criminal  cases,  which  would  not  be  tried 
in  these  courts,  his  verdict  was  rendered  by  a  class 
much  above  him.  On  the  other  hand  in  the  case  of 
men  of  standing  and  influence  in  the  community, 
it  was  very  difficult,  owing  to  the  principle  of 


The  Judiciary  157 

unanimity,  to  obtain  from  a  jury  an  adverse  verdict 
in  any  serious  matter.1 


With  this  discussion  of  the  jury,  is  concluded  the 
account  of  the  new  business  and  the  new  methods  which 
the  king's  court  was  assuming  in  the  late  twelfth  and 
early  thirteenth  centuries.  But  the  increased  business 
had  a  most  important  influence  upon  the  court  itself; 
its  old  structure  and  organisation  had  become  in- 
sufficient, and  it  is  necessary  to  consider  next  how 
it  adapted  itself  to  the  new  demands.  The  king  had 
been  rapidly  making  the  judicial  business  of  the  country 
his  own;  an  important  specialisation  of  his  court 
for  judicial  business  resulted;  a  court  was  created  in 
the  modern  sense  of  the  word  out  of  the  king's  court, 
Curia  Regis,  where  the  word  court  has  its  broader 
and  earlier  meaning.  Certain  specialisations  of  the 
Curia  in  the  reign  of  Henry  I.  have  been  noted. 2 
These  were  all  revived  at  the  beginning  of  Henry  II.'s 
reign,  but  no  one  of  them  was  a  thorough-going  judicial 
specialisation,  a  court.  But  during  his  reign  and  the 
century  following,  two  of  them,  the  itinerant  justices 

1  "  After  some  hesitation  our  law  had  adopted  its  well-known 
rule  that  a  jury  can  give  no  verdict  unless  the  twelve  men  be  all 
of  one  mind.     To  obtain  a  condemnatory  unanimity  was  not  easy 
if  the  accused  was  a  man  of  good  family;  one  out  of  every  twelve 
of  his  neighbours  that  might  be  taken  at  random  would   stand 
out  loyally  for  his  innocence.     Bribery  could  do  much;  seignorial 
influence  could  do  more;  the  sheriff,  who  was  not  incorruptible, 
could  do  all,  since  it  was  for  him  to  find  the  jury." — Maitland  in 
Train's  Social  England  i.,  294.     This  author  thinks  that  if  it  had 
not  been  for  the  drastic  calling  of  jurors  to  account  by  king  and 
Council  in  the  time  of  the  Tudors  and  Stewarts  the  institution 
might  not  have  survived. 

2  See  above,  pp.  125-131. 


158        Period  of  Constitution  Making 

and  the  Exchequer,  underwent  a  development  along 
judicial  lines  that  transformed  them. 

The  Assize  of  Clarendon  marks  an  important  turning. 
point  in  tne  history  ot  the  itinerant  justices.  After  that, 
the  criminal  cases  that  were  being  drawn  into  the 
king's  court  and  the  new  possessory  actions  formed 
the  principal  part  of  their  business,  and  one  hesitates 
no  longer  to  call  them  judges.  They  might  not  now 
all  be  members  of  the  central  Curia,  but  some  of  each 
group  almost  always  were.  In  either  case,  however, 
they  were  doing,  as  formerly,  Curia  Regis  business; 
the  court  which  they  held  was  Curia  Regis.  Long 
after  Henry  II. 's  time,  they  did  king's  business  of 
a  non-judicial  character,  often  along  with  their  judicial 
work,  but  it  is  not  surprising  that  in  this  legal  reign 
the  English  missus  dominicus  was  becoming  a  specialist 
in  judicial  matters.  If  a  constantly  increasing  number 
of  actions  were  to  be  tried  in  the  king's  court,  that 
court  must  become  to  some  extent  itinerant,  unless 
litigants  and  juries  were  to  bear  the  burden  and  ex- 
pense of  long  journeys.  This  new  need  seized  upon 
the  already  existing  itinerant  justice  system  and  the 
circuit  court  was  created.  After  the  Assize  of  North- 
ampton, which  in  1176  still  further  extended  the  work 
of  the  itinerant  justices,  they  were  almost  constantly 
used  to  the  end  of  the  reign.  There  was  at  this  time 
little  regularity  in  sending  them  out,  in  the  extent  or 
location  of  their  circuits,  in  their  personnel,  or  in  the 
contents  of  their  commissions.  The  king  seems  to  have 
apportioned  his  increasing  business  between  Curia 
Regis  at  Westminster  and  Curia  Regis  in  the  localities 
as  its  varying  amount  and  nature  from  year  to  year 
or  month  to  month  suggested. 


The  Judiciary  159 

The  century  following  Henry  II.  was  still  a  time  of 
experiment  and  gradual  development  in  the  itinerant 
justice  system,  or  the  system  of  commissions  as  it  may 
perhaps  be  more  properly  called.  There  came  to  be 
two  main  classes  of  commissions,  those  of  a  minor 
character  and  the  general  iters.  The  more  important 
minor  commissions  were  for  gaol  delivery  or  the  pos- 
sessory assizes.  The  individual  commission  of  gaol 
delivery  applied  to  a  specific  gaol  named  therein;  it 
did  not  order  an  inquiry  through  a  jury  of  accusation, 
but  dealt  simply  with  those  persons  found  in  the  gaol 
at  the  date  named;  it  might,  however,  involve  the 
trial  of  some  of  the  greatest  criminal  cases.  This 
commission  was  often  entrusted  to  knights  resident 
in  the  shire  concerned,  in  which  case,  of  course,  there 
was  nothing  itinerant  about  it.  For  the  possessory 
assizes,  many  commissions  were  issued  every  year. 
The  general  practice  was  to  entrust  them  to  at  least 
one  permanent  judge,  a  member  of  the  central  court, 
who  associated  local  knights  with  himself.  The  growing 
use  of  knights  in  the  administration  of  royal  justice 
was  a  very  characteristic  and  important  development 
of  this  period.  The  local  gentry  in  England  were 
destined,  in  one  way  or  another,  to  do  much  governing. 

The  general  iter  of  this  period,  the  iter  ad  omnia 
placita,  was  in  a  special  sense  the  iter  or  eyre.  Of  this,  the 
famous  iter  of  1194  may  be  taken  as  an  early  example 
and  prototype.  l  The  justices  who  were  sent  out  on 
such  visitations  had  tremendous  commissions;  they 
not  only  tried  all  sorts  of  cases,  but  were  still,  as  in 
the  earlier  time,  collectors  of  revenue,  and  might  be 
charged  to  attend  to  any  kind  of  king's  business. 

1  A.  and  S.,  document  21. 


160        Period  of  Constitution  Making 

Henry  III.  got  a  great  revenue  by  their  means.  They 
put  local  juries  on  oath  for  a  great  variety  of  purposes, 
their  visitation  being  a  prolonged  inquiry  into  every_ 
matter  that  could  possibly  concern  the  king.  The 
later  scheme,  by  which  business  might  still  go  on  at 
Westminster  for  a  certain  locality  after  a  commission 
had  been  issued  for  that  locality,  the  cases  coming  on  at 
Westminster  until  the  justices  were  actually  in  their 
local  session,  had  not  yet  been  thought  of.  The  moment 
a  commission  was  issued,  all  business  included  in  the 
commission  stopped  for  the  entire  circuit  to  be  visited ; 
and  if  commissions  were  issued  for  all  England,  all 
the  business  named  was  forthwith  suspended  at  the 
centre.  This  lead  to  a  glut  of  work  in  the  local  sessions 
of  the  justices  and  greatly  increased  their  length. 
Thus  these  general  visitations  were  altogether  formid- 
able and  burdensome 1 — "those  tedious  old  iters," 
Maitland  calls  them.  They  became  one  of  the  standing 
grievances  against  Henry  III.,  and  the  people  were 
outspoken  in  their  complaints.  It  became  a  sort  of 
unwritten  law  in  his  reign,  apparently  as  a  result  of 
the  general  outcry,  that  they  should  be  made  only 
once  in  seven  years.  This  remained  the  practice 
until  they  ended  in  the  next  reign. 

One  of  the  great  legal  reforms  of  Edward  I.  had 
to  do  with  the  itinerant  justice  system;  the  statute 
of  Westminster  II.,  1285,  inaugurated  a  new  regime 
that  in  some  of  its  principal  features  has  lasted  to  the 
present  day.  It  reorganised  one  of  the  minor  com- 
missions, that  of  Assize,  and  instituted  the  nisi  prius 

1  Speaking  of  the  justices  who  were  about  to  visit  Cornwall,  a 
chronicler  stated  that  quorum  metu  omnes  ad  silvas  fugerunt. 
Cited  in  P.  and  M.  i.,  302. 


The  Judiciary  161 

principle.  The  commission  of  Assize  replaced  the  old 
general  iter,  and  the  justices  were  relieved  of  the 
mass  of  non-judicial  business  which  had  so  long  been 
a  relic  of  their  earliest  history.  This  commission  at 
first  included  only  cases  concerning  real  property,  but 
before  the  end  of  Edward  III.'s  reign  it  had  expanded 
so  as  to  include  almost  every  action,  criminal  as  well 
as  civil.  However,  the  very  rapid  contemporary  de- 
velopment of  the  justices  of  the  peace 1  so  reduced  the 
work  of  the  itinerant  justices  that  their  visitations 
were  never  of  the  old  prolonged  or  burdensome  charac- 
ter. To  the  same  end,  worked  the  nisi  prius  principle. 
Cases  were  put  upon  the  docket  at  Westminster  and 
were  tried  there  unless  before  (nisi  prius)  the  appointed 
date  the  itinerant  justices  had  come  into  the  county 
concerned.  Thus  for  any  circuit,  judicial  business  might 
be  done  at  the  centre  and  in  the  locality  at  the  same 
time.  The  commissions  of  Assize  were  always  entrusted 
to  sworn  knights  of  the  king's  central  court,  but  as  these 
justices  went  on  their  circuit  from  county  to  county 
they  associated  with  themselves  a  certain  number  of 
knights  from  each.  With  these  changes,  the  system 
of  commissions  assumed  the  chief  features  that  it  has 
since  borne.  Its  history  in  the  thirteenth  and  four- 
teenth centuries  shows  how  rapidly  the  king's  courts 
were  absorbing  the  judicial  business  of  the  country 
and  how  necessary  it  was  that  much  of  that  business 
be  done  in  the  localities. 

The  second  of  the  Curia  Regis  specialisations  of 
Henry  I.'s  reign,  which  began  to  receive  important 
judicial  development  in  the  reign  of  his  grandson,  was 
the  Exchequer.  This  institution  had  little  about  it 

i  See  below,  pp.  194,  195. 


162        Period  of  Constitution  Making 

at  the  start  that  suggests  a  court — the  smaller  Curia 
Regis  sitting  spring  and  fall  before  the  chequered 
table  to  balance  the  king's  accounts  with  the  sheriffs. 
It  was  an  administrative  body  of  a  special  sort,  a  finan- 
cial bureau.  In  the  course  of  two  centuries,  it  became 
also  a  court ;  it  was  always  Curia  Regis.  The  primitive 
Exchequer  controlled  the  king's  treasure ;  nothing  could 
be  paid  out  without  its  authority,  for  there  was  no 
treasury  department  in  any  way  distinct  from  it. 
It  received  all  moneys  due  to  the  king;  at  Easter  and 
Michaelmas,  the  sheriffs  made  their  reckoning  with 
this  body  for  all  sums  due  from  their  respective  shires 
and  had  their  accounts  audited.  It  dealt  with  the 
king's  debtors.  It  was  through  a  development  of  this 
last  function  that  it  first  did  judicial  work.  In  dealing 
with  debt  cases,  it  developed  a  summary  procedure 
peculiarly  its  own;  while  aiming  to  deal  impartially 
between  king  and  subject,  its  position  as  guardian  of  the 
king's  financial  interests  made  it  especially  careful  that 
the  king  should  receive  his  due.  It  could  also  enter- 
tain the  case  of  one  who  had  a  claim  against  the  king. 
The  king  could  not  be  sued,  but  king  and  Curia  might 
accept  the  claimant's  petition  that  the  case  be  in- 
vestigated. This  was  an  extension  of  the  Exchequer's 
judicial  work,  and  it  was  supposed  to  associate  with 
itself  the  two  chief  justices  when  questions  of  law 
were  involved.  After  it  had  to  all  intents  and  pur- 
poses become  a  court  of  law,  its  administrative  work 
and  its  traditions  hardly  allowed  it  to  be  so  considered ; 
the  Barons  of  the  Exchequer  knew  the  "course  of  the 
Exchequer, "  not  the  common  law.  But  finally,  despite 
this  supposition,  it  began  to  entertain  cases  between 
iubject  and  subject,  and  thus  did  violence  to  any 


The  Judiciary  163 

existing  theory  of  its  functions.  These  cases  were 
for  the  most  part  debt  cases,  and  the  persistence  with 
which  they  were  taken  to  the  Exchequer,  rather  than 
to  the  law  courts  where  they  belonged,  is  only  to  be 
explained  by  the  benefit  to  be  derived  from  the  speedy 
and  severe  methods  which  the  Exchequer  had  evolved 
in  collecting  the  king's  debts.  In  the  reign  of  Edward 
I.,  the  Exchequer  was  forbidden  by  statute  to  accept 
such  cases;  but  the  prohibition  seems  to  have  been 
little  heeded,  and,  partly  by  the  use  of  legal  fiction1 
and  partly  by  the  express  permission  of  the  king,  it 
drew  to  itself  more  and  more  of  the  common  pleas. 
This  change  of  function  was  accompanied  by  a 
change  in  personnel.  When,  as  in  the  reign  of  Henry 
L,  the  Exchequer  was  merely  the  smaller  Curia  Regis 
sitting  for  financial  business,  it  of  course  contained 
such  great  officials  as  the  Justiciar  and  the  Chancellor; 
but  with  the  increased  judicial  business  of  Henry  II. 's 
time,  a  process  of  specialisation  began.  The  Chancery, 
the  writ-issuing  department,  became  separated  in  the 
reign  of  Richard  L,  and  both  Chancellor  and  Justiciar 
ceased  to  attend  early  in  Henry  III.'s  reign.  This 
left  the  Treasurer  as  the  presiding  officer  of  the  Ex- 
chequer, and  a  Chancellor  of  the  Exchequer  was 
appointed  as  the  keeper  of  its  official  seal.  But  more 
important  in  showing  the  transition  from  the  old 
feudal  to  the  new  official  regime,  is  the  fact  that  the 
king  now  appointed  its  members,  the  Barons  of  the 
Exchequer.  It  was  no  longer  a  feudal  body  or  part 

1  The  plaintiff  usually  claimed  that  he  was  indebted  to  the  king 
and  was  prevented  by  the  defendant  from  discharging  his  debt. 
This  brought  the  case  technically  within  the  competence  of  the 
court  by  making  it  a  concern  of  the  king's  revenue,  and  the  court 
allowed  the  defendant  to  make  no  denial  of  the  plaintiff's  claim. 


c* 


164        Period  of  Constitution  Making 

of  a  feudal  body.  It  was  a  body  of  appointed  officials, 
whose  work  was  rapidly  becoming  judicial,  but  who, 
owing  to  their  non-judicial  origin,  were  never  called 
judges.  In  the  reign  of  Edward  I.,  the  Treasurer 
ceased  to  have  anything  to  do  with  the  Exchequer's 
judicial  business,  and  a  Chief  Baron  became  the 
presiding  officer  of  the  court. l  With  but  slight 
changes,  the  Court  of  Exchequer  remained  as  it  was 
organised  in  this  reign  down  to  its  absorption  in  the 
High  Court  of  Justice  in  1873.  In  the  early  seven- 
teenth century,  the  treasury  department  had  become 
completely  separated  from  it.  But  it  should  be  re- 
membered that  this  department  is  as  straight  a  de- 
scendant from  the  original  Exchequer  as  the  court, 
and  that  the  term  Exchequer  is  as  properly  applied 
to  it. 

It  was  the  great  extension  of  the  king's  judicial 
business  in  the  reign  of  Henry  II.  and  the  period 
following  which  developed  a  common-law  court  out 
of  the  original  Exchequer.  The  same  cause  brought 
forth  the  other  two  common-law  courts.  The  first, 
definite  and  purposeful  move  towards  the  creation  of 
a  central  court  in  the  modern  sense  of  the  word  was 
when  Henry  II.  designated  from  his  Curia  a  body 
of  about  five  men,  clerks  and  laymen,  who,  with  the 
king  or  without  him,  were  to  devote  themselves  ex- 
clusively to  doing  justice.  It  was  a  specialisation2; 
the  increasing  judicial  work  could  not  be  left  to  the 

1  The  Chancellor  of  the  Exchequer  also  never  became  a  common- 
law  judge;  he  is  connected  only  with  that  Exchequer  which  is  a  rev- 
enue department. 

*  It  was  not  a  complete  specialisation  to  begin  with;  any  of  the 
five  might  at  the  same  time  be  Barons  of  the  Exchequer  and  attend 
to  various  kinds  of  king's  business. 


The  Judiciary  165 

occasional  and  unskilled  performance  of  tenants-in- 
chief.  This  body  of  five  judges  soon  became  known 
as  the  Beiich^  from  the  nature  of  their  seat  when 
.doing  justice.  Until  the  reign  of  John,  there  was  little 
further  development  of  the  court.  This  king  often 
had,  when  travelling,  a  party  of  justices  in  his  train 
wrho  did  justice  in  his  presence  en  route,  while  the  Bench 
remained  at  Westminster.  Thus  arose  a  distinction 
between  the  body  of  judges  who  habitually  did  justice 
in  the  king's  presence  (cor am  rege}  and  those  who  re- 
mained at  the  centre  and  usually  did  justice  without 
the  king.  That  this  distinction  was  clearly  recognised 
before  the  end  of  John's  reign  is  shown  by  the  well- 
known  clause  in  Magna  Carta:  "The  common  pleas 
shall  not  follow  our  court,  but  shall  be  held  in  some 
certain  place. "  1  So  many  were  seeking  justice  at  the 
king's  court  that  it  had  become  a  matter  of  importance 
to  know  where  the  judges  were  to  be  found  who  tried 
the  common  pleas,  the  cases  between  man  and  man. 
During  the  long  minority  of  Henry  III.,  there  was  no 
coram  rege  court  as  distinguished  from  the  Bench 
at  Westminster;  but  upon  the  king's  coming  of  age, 
or  very  soon  after,  the  same  differentiation  appeared 
as  in  the  preceding  reign,  and  from  that  time  there 
was,  besides  the  Exchequer  and  the  Bench,  another 
central  court,  the  characteristic  of  which  was  the 
king's  presence.  This  was  the  beginning  of  the  Court 
of  King's  Bench,  a  court  which  quite  naturally  came 
to  deal  with  the  important  criminal  cases,  the  pleas 
of  the  crown.2  As  the  later  medieval  kings  gradually 
ceased  their  peregrinations,  this  court,  like  the  others, 
became  stationary  at  Westminster.  The  Bench  always 
»  A.  and  S.,  p.  45.  2  See  above,  p.  147.  n°te  2. 


166        Period  of  Constitution  Making 

remained  the  technical  name  for  the  court  whose 
main  business  comprised  the  civil  suits  between  man 
and  man,  but  it  came  to  be  more  generally  called 
Common  Bench  or  Common  Pleas.  Thus  before  the 
end  of  the  thirteenth  century  the  Curia  Regis  had 
thrown  off  the  three  common-law  courts,  Exchequer, 
King's  Bench,  and  Common  Pleas.1 

To  begin  with  each  had  its  proper  business;  the  King's 
Bench,  the  pleas  of  the  crown,  including  all  breaches  of  the 
king's  peace;  the  Common  Pleas,  the  ordinary  civil  actions; 
the  Exchequer,  matters  touching  the  royal  revenue.  This 
is  but  a  rough  statement;  really  the  spheres  of  the  King's 
Bench  and  Common  Pleas  overlapped,  and  this  facilitated 
the  practice  of  stealing  work  from  the  Common  Pleas 
which  was  begun  by  the  King's  Bench  and  adopted  by  the 
Exchequer,  for  more  business  meant  more  money.  In 
the  end  it  came  about  that  while  each  court  had  some  work 
all  its  own,  each  could  entertain  any  of  the  common  civil 
actions. 2 

^  For  a  very  useful  diagram  illustrating  these  and  other  develop- 
ments of  the  central  Curia,  see  G.  B.  Adams,  The  Descendants 
of  the  Curia  Regis,  American  Historical  Review  xiii.,  11-15. 

2Maitland,  Justice  and  Police,  p.  35.  The  differentiation  of  the 
King's  Bench  from  what  might,  at  the  end  of  the  thirteenth  century, 
be  termed  the  king's  council  (see  below,  pp.  286-290)  was  very  grad- 
ual. "  For  ordinary  purposes"  the  King's  Bench  consisted  "  of  a 
few  professional  judges,  .  .  .  but  at  any  moment  this  court 
can  be  afforced  by  the  presence  of  the  king,  of  his  councillors,  of 
numerous  barons  and  prelates";  in  either  form  this  was  the  old 
coram  rege  court.  But  in  the  reign  of  Edward  I.,  can  be  noted  the 
beginning  of  the  final  complete  separation  of  the  King's  Bench, 
a  limited  court  of  professional  judges,  from  a  larger  and  vaguer 
Curia  Regis  or  what  stood  for  that  at  this  later  date.  But  when 
that  separation  had  taken  place  and  the  Curia  Regis  had  brought 
forth  its  third  judicial  offspring,  we  find  that  neither  in  its  smaller 
nor  its  larger  form,  neither  as  Council  nor  as  House  of  Lords,  had 
that  body  divested  itself  of  all  its  judicial  power.  And  the  judicial 


The  Judiciary  167 

2.  The  Displacement  of  the  Old  Local  Courts  by  a 
New  Local  System  of  Royal  Courts  —  The  immediate 
effects  of  the  Norman  Conquest  upon  the  old  local 
courts,  both  communal  and  private,  have  been  dis- 
cussed. 1  We  begin  here  with  the  situation  as  found 
in  the  early  part  of  Henry  I.'s  reign.  Private  juris- 
diction was  increasing  under  the  impulse  of  continental 
thought;  Henry  had  attempted  to  correct  the  irregu- 
larities in  the  hundred  and  shire  courts  for  which  the 
sheriff  had  been  largely  responsible  in  his  brother's 
time,  and  the  sheriff,  a  royal  officer,  had  become  the 
only  presiding  and  constituting  official  in  those  courts. 
This  last  fact,  taken  in  conjunction  with  the  con- 
tinental conception  of  the  king  as  the  source  of  law 
and  the  masterful  character  of  the  post-conquest 
sovereigns,  leads  one  to  look  for  an  early  and  funda- 
mental change  in  the  local  courts.  There  are  many 
clear  indications  that  the  change  was  beginning  under 
Henry  I. 

There  were  meetings  of  the  county  court  that  re- 

d  such  a 


class  of  cases  as  make  it  clear  that  they  were  different 
from  the  ordinary  meetings.  Their  composition  was 
strikingly  like  that  of  the  later  itinerant  justice  courts  ; 
cases  in  which  the  king  was  specially  concerned  were 
tried  there,  and  also  cases  between  the  vassals  of 
different  lords,  such  as  on  the  continent  would  always 
have  been  carried  before  a  suzerain's  court.  When 

power  which  remained  was  of  a  higher  order  than  that  which 
it  had  transmitted.  "A  court  which  is  to  stand  above  the  king's 
bench  is  being  evolved  out  of  the  old  court  held  coram  rege.  "  — 
Maitland,  Introduction  to  Memoranda  de  Parliamento,  pp.  Ixxx,- 
Ixxxi.,  passim.  See  also  below,  pp.  200,  201, 
>  See  Part  II.,  §  II.,  2. 


1 68        Period  of  Constitution  Making 

the  king  ordered  this  specially  full  attendance  .for. 
doing  this  kind  of  business  and  the  presiding  sheriff 
was  perhaps  more  emphatically  the  king's  represen- 
tative than  wont,  the  shire  court  had,  for  the  time, 
become  a  king's  court.  It  is  probable  also  that  in  the 
course  of  the  reign  itinerant  justices  were  sent  out 
with  some  regularity  and  that  such  courts  were 
summoned  to  meet  them.1 

In  the  same  reign,  there  is  evidence  of  specially  full 
meetings  of  the  hundred  court,  held  twice  a  year  when 
necessary,  whose  main  purpose  was  view  of  frankpledge. 
The  frankpledge  system  was  a  continuation  by  the 
Norman  kings  of  a  thoroughly  established  Anglo- 
Saxon  principle  and  the  rapid  extension  of  an  appli- 
cation of  it  that  was  probably  first  made  shortly 
before  the  Conquest.  The  principle  was  that  every 
man  of  the  lower  classes,  who  could  not  be  readily 
reached  through  his  property  and  held  responsible 
for  his  misdeeds,  be  provided  with  a  pledge  who  must 
produce  him  at  court  in  every  suit  in  which  he  was 
concerned.  This  was  the  animus  of  the  decrees  of 
Anglo-Saxon  kings  that  every  man  must  have  a 
lord;  they  were  essentially  police  regulations.2  But 
it  was  hard  to  find  a  pledge  for  every  man,  and  the 
burden  upon  individual  pledges  was  often  great.  The 
late  application  of  the  principle  was  to  make  a  group 
of  the  man's  neighbours  his  pledge ;  a  fixed  body  of  men 
was  thus  held  responsible  for  bringing  any  one  of  its 
members  to  court.  This  group  was  called  a  tithing. 

1  For  a  discussion  of  this  point,  based  upon  a  study  of  Henry's 
writ  concerning  local  courts  and  some  passages  in  the  Leges  Henrici 
Primi,  see  G.  B.  Adams  in  American  Historical  Review  viii.,  pp. 
487-490. 

1  See  above,  pp.  41,  42. 


The  Judiciary  169 

The  tithing,  like  the  hundred,  had  had  a  long  and 
obscure  history  before  it  was  put  to  any  judicial 
use — a  history  that  would  lead  into  fields  of  discussion 
that  cannot  be  entered  here.  Suffice  it  to  say  that 
in  southern  England  the  tithing  was  identical  with 
the  township,  while  in  the  centre,  where  it  seems  not  to 
have  existed  before  the  time  of  which  we  are  speaking 
it  had  in  its  new  use  its  literal  meaning  of  a  group 
of  ten.  In  the  south,  then,  the  duty  of  producing  its 
members  in  court  fell  upon  the  township  or  manor, 
while  in  the  centre  it  was  borne  by  the  group  of  ten 
men.  In  most  of  the  northern  counties,  this  system 
was  never  introduced. 

Each  tithing  had  a  tithingman  as  its  head  and 
representative,  who  was  present  at  the  semiannual 
meetings  of  the  hundred  courts  to  report  on  the  con- 
dition of  his  tithing.  But  when  the  tithing  was  a 
manor,  an  already  existing  system,  by  which  the 
manor  was  represented  at  the  local  courts  by  reeve 
and  four  men  when  the  lord  or  his  steward  could  not 
be  present,  seems  to  have  taken  the  place  of  repre- 
sentation by  tithingman. 1  Holding  groups  of  men 
responsible  for  the  appearance  in  court  of  their  mem- 
bers came  to  be  known  as  frankpledge.  This  was 
apparently  owing  to  a  mistranslation  by  the  Normans 
of  the  Anglo-Saxon  frithborg,  which  they  took  to  mean 
free-pledge  instead  of  peace-pledge;  it  was  the  Anglo- 
Saxon  name  of  the  institution  which  they  were  con- 
tinuing and  developing.  View  of  frankpledge  was 
an  examination  of  the  pledges  to  see  if  they  were  full 
and  properly  organised.  The  special  meetings  of 

1  How  these  two  systems  of  representing  the  tithing  were  related 
is  not  clear;  there  was  much  irregularity  and  overlapping. 


1 70        Period  of  Constitution  Making 

the  hundred  courts  held  for  this  purpose  and  over 
which  the  sheriffs  presided  must  be  considered  as 
essentially  king's  courts;  their  main  purpose  was  the 
enforcement  of  a  piece  of  police  machinery  devised 
by  the  king.  Thus  during  Henry  I.'s  reign,  both  the 
shire  courts  and  the  hundred  courts  were,  upon 
occasion,  king's  courts,  and  were  always  potentially 
such. 

By  the  Assize  of  Clarendon,  1166,  a  new  power  was 
given  the  sheriff,  the  use  of  the  accusing  jury;  and 
it  has  been  suspected  that  Henry  I  I.'s  adoption  of 
this  procedure  in  his  own  courts,  was  suggested  by 
the  frankpledge  system.  "The  machinery  was  apt 
for  the  purpose ;  the  duty  of  producing  one's  neighbour 
to  answer  accusations  could  well  be  converted  into 
the  duty  of  telling  tales  against  him."1  The  sheiiff 
used  the  accusing  jury  in  the  semiannual  meetings 
of  the  hundred  court,  where  criminal  cases  were  initi- 
ated that  were  to  be  concluded  before  the  itinerant, 
justices  and  where  many  minor  criminal  matters  were 
disposed  of.  This  court  came  to  be  known  as  the 
sheriff's  tourn.2  It  was  his  semiannual  visitation  of 
the  hundreds  of  his  shire  for  the  purpose  of  criminal 
jurisdiction.  In  such  a  court,  where  he  was  as  dis- 
tinctly a  royal  justice  as  the  itinerant  justice  was  in 
his  court,  the  sheriff  naturally  assumed  more  and 
more  of  the  judging  function;  he  was  not  a  mere  pre- 
siding officer  or  one  who  looked  out  for  the  royal 
interests  in  a  court  that  derived  its  authority  from  a 

1  Maitland,  Introduction  to  vol.  ii.  of  the  Selden  Society  Publica- 
tions, p.  xxxvii. 

1  The  word  tourn  or  turn  was  not,  until  after  the  thirteenth  century 
used  as  a  sufficient  description  of  the  court;  it  was  Curia  visus 
franciplegii  domini  regis  apud  B.  cor  am  vicecomiti  in  turno  suo. 


The  Judiciary  171 

source  outside  the  king,  as  he  had  been  in  the  old  com- 
munal courts.  This  being  the  character  of  the  tourn, 
it  quite  naturally  became  a  court  of  record  like  the 
other  king's  courts.  By  this  is  meant  that  it  kept  a 
record  of  its  proceedings  and  judgments,  which  could 
thus  be  used  as  precedents.1 


The  invasion  of  the  old  local  court  system  by  the 
king's  jurisdiction  has  become  sufficiently  marked,  as 
we  reach  this  point,  to  make  it  appear  certain  that 
the  former  will  finally  disappear.  The  relations  of  the 
two  were  very  complex  during  the  next  century  and 
a  half;  and  this  makes  it  necessary  here  to  distin- 
guish and  summarise  the  later  history  of  the  old 
system,  as  far  as  it  is  possible  to  do  so,  before  con- 
tinuing the  discussion  of  the  new  system  which  the 
king  was  putting  in  its  place.  The  last  epoch  in  the  his- 
tory of  the  shire  court,  the  hundred  court,  and  the 
private  courts  will  be  considered,  taking  each  separately 
and  in  the  order  named.2 

By  the  end  of  Henry  II.  's  reign,  the  shire  court  seems 
to  have  met  much  oftener  than  twice  a  year,  its  custom 
in  the  Anglo-Saxon  period.  Henry  I.  had  decreed 
semiannual  meetings,  but  had  in  mind  the  occasional 
necessity  of  greater  frequency.3  The  increase  of 

1  The  old  local  courts,  both  public  and  private,  began  to  imitate 
the  king's  courts  and  keep  records  about  the  middle  of  the  thirteenth 
century,  a  half  century  after  the  king's  courts  began  the  practice. 
These  records,  of  course,  had  no  public  authority. 

2  No  clear  and  detailed  account  of  the  steps  by  which  this  older 
jurisdiction  waned  is  possible.      The  further  it  is  traced,  the  more 
scanty  and  obscure  does  the  information  become,  a  proof  in  itsetf 
of  the  steadiness  with  which  it  declined. 

3  Stubbs's  Select  Charters,  p.  104. 


Period  of  Constitution  Making 

business,  which  resulted  from  a  more  rigid  enforcement 
of  justice  and  more  use  of  the  local  courts  by  the  king, 
made  the  exception  the  rule  by  the  end  of  the  twelfth 
century.  By  that  time  also,  by  the  use  of  commissions, 
the  shire  court,  when  summoned  for  certain  specified 
kinds  of  business,  was  completely  transformed  into 
a  king's  court.1  Such  a  court  had,  of  course,  ceased 
to  be,  in  any  proper  sense,  a  shire  court,  and  forms  no 
part  of  our  present  subject.  By  the  system  of  com- 
missions, the  old  communal  court  was  shorn  of  much 
of  its  jurisdiction.  The  itinerant  justice  and  the 
sheriff  in  his  tourn  were  absorbing  criminal  justice, 
and  the  old  court's  civil  jurisdiction  was  being  eaten 
into  by  the  possibility  of  evoking  cases  into  the  king's 
court  by  writ.  The  enormous  popularity  of  the  pos- 
sessory actions,  which  could  only  be  brought  in  a 
royal  court,  made  the  work  of  the  shire  court  seem 
relatively  small;  and  as  these  actions  often  gave  rise 
to  corresponding  proprietary  actions,  they  constituted 
a  positive  drain  upon  the  old  court. 

In  Henry  III.'s  second  reissue  of  Magna  Carta,  1217, 
there  was  a  regulation  that  the  shire  court  be  held 
monthly,  the  language  implying  that  it  had  been  held 
oftener.2  It  was  becoming  distinctly  a  court  for  the 
lesser  civil  cases,  held  at  frequent  intervals  for  the 
accommodation  of  the  people.3  In  it,  the  old  pro- 
cedure survived;  it  did  not  adopt  the  jury  as  did  the 
private  courts.  It  only  used  jury  trial  when  the  king's 

>  See  above  pp.  167,  168.  z  Stubbs,  Select  Charters,  p.  346. 

J  "  It  entertains  some  of  the  initial  proceedings  in  criminal  cases, 
but  for  the  more  part  it  is  a  civil,  non-criminal  court;  it  has  an 
original  jurisdiction  in  personal  actions;  real  actions  come  to  it 
when  feudal  courts  make  default  in  justice;  cases  are  sent  down 
to  it  for  trial  by  jury  from  the  king's  court." — P.  and  M.  i.,  530. 


The  Judiciary  173 

court  sent  some  case  into  it  in  order  that  it  might 
be  tried  in  the  locality.  The  shire  courts  clung  to 
the  old  procedure  because  the  dwindling  number  and 
importance  of  their  cases  hardly  made  it  worth  while 
to  attempt  anything  new,  but  the  result  was  un- 
doubtedly an  accelerated  decline.  No  one  was  inter- 
ested in  their  survival.  They  were  the  courts  of  the 
people,  and  the  people  were  finding  it  more  to  their 
interest  to  get  their  cases  tried  in  the  king's  courts. 

A  further  weakening  resulted  from  a  decreasing 
attendance.  Suit  of  court  had  always  been  regarded 
as  a  burden  and  attempts  had  been  made  to  avoid 
it;  now  there  was  no  need  of  enforcing  it  so  rigidly  as 
in  times  past.  The  Statute  of  Merton,  1236,  made  it 
no  longer  necessary  that  all  freeholders  who  owed 
suit  of  court  should  attend  in  person;  they  might  send 
substitutes.  Some  of  the  greater  landowners,  who 
had  now  very  little  concern  with  this  court,  were  at- 
tempting to  withdraw  from  it  entirely,  and  during 
the  thirteenth  century  a  great  many  of  them,  es- 
pecially those  who  represented  great  religious  houses, 
purchased  or  were  freely  granted  charters  of  exemp- 
tion. Many  simply  stopped  attending  and,  in  course 
of  time,  claimed  and  obtained  exemption  through 
prescription.  Thus  by  the  late  thirteenth  century, 
the  shire  court  was  for  small  cases  and  small  people. 

A  clause  of  the  Statute  of  Gloucester,  1278,  was  so 
interpreted  as  to  make  the  cases  grow  still  smaller. 
"The  clause  in  question  seems  on  its  face  to  have  quite 
another  object:  it  says  that  none  is  to  have  a  writ  of 
trespass  in  the  king's  courts  unless  he  will  affirm  that 
the  goods  taken  away  were  worth  forty  shillings  at 
the  least.  This  seems  to  have  been  construed  to 


174        Period  of  Constitution  Making 

imply  a  very  different  rule,  namely  that  no  action 
for  more  than  forty  shall  be  brought  in  a  local  court. "  * 
By  1290,  this  had  become  law,  and,  as  money  de- 
creased in  purchasing  power,  the  number  of  cases 
brought  before  a  shire  court  grew  steadily  less.  By 
the  end  of  the  fifteenth  century,  its  judicial  work  was 
of  no  importance;  but  no  statute  brought  this  side 
of  its  activity  to  an  end  or  changed  the  limitation  set 
in  1278  until  the  erection  of  the  new  county  courts  in 
1846.  The  shire  court  had  always  had  some  functions 
that  were  not  judicial,  and  it  lasted  for  the  purpose 
of  electing  such  local  officials  as  the  coroners  and 
verderers  and,  a  far  more  important  matter,  electing 
the  knights  to  represent  the  shire  in  Parliament. 

Much  that  has  been  said  of  the  process  by  which 
the  shire  court  ceased  to  be  a  judicial  body  applies 
to  the  hundred  court,  but  there  are  some  distinctive 
points  in  the  latter's  history.  By  Henry  II. 's  time, 
the  hundred  court  was  also  meeting  more  frequently 
than  it  had  before  the  Conquest  or  for  some  time  after; 
it  was  probably  meeting  every  two  weeks.  In  1234, 
Henry  III.  sent  out  orders  to  his  sheriffs  that  it  should 
be  held  every  three  weeks.  This  change  was  doubtless 
owing  to  a  decrease  in  business  which  resulted  from 
the  same  forces  that  were  weakening  the  shire  court. 
The  hundred  court  came  to  be  known  as  Curia  Parva 
Hundredi,  apparently  in  contrast  with  the  sheriff's 
tourn.  Its  business,  at  the  end  of  the  twelfth  century, 
was  confined  to  petty  civil  cases.2  The  statutes  of 

>  Maitland,  Introduction  to  Select  Pleas  in  Manorial  Courts, 
p.  Ivi. 

2  The  hundred  court's  "  competence  seems  much  the  same  as  that  of 
the  county  court,  though  its  powers  are  confined  within  narrower 
geographical  limits;  but  real  actions  do  not  conic  to  it,  nor  do  we 


The  Judiciary  *75 

Merton  and  Gloucester  had  the  same  effect  upon  its 
make-up  and  competence  as  in  the  case  of  the  shire 
court. 

But  another  process  greatly  hastened  the  hundred 
court's  extinction.  Before  the  Conquest,  the  juris- 
diction over  many  parts  of  hundreds  and  over  some 
whole  hundreds  had  passed  into  private  hands,  though 
there  was  little  consciousness  of  this  change.1  After 
the  Conquest,  the  process  went  on  more  rapidly,  the 
country  was  covered  with  manors,  and,  by  the  end  of 
the  thirteenth  century,  little  was  left  of  the  old  hun- 
dredal  jurisdiction.  Petty  civil  cases  for  all  classes 
could  be  taken  care  of  by  the  private  courts  and  the 
shire  courts;  and,  moreover,  the  interpretation  placed 
upon  the  Statute  of  Gloucester  was  carrying  an  in- 
creasing number  of  small  suits  straight  to  the  king's 
courts.  In  fact,  this  went  so  far  that,. in  course  of 
time,  it  produced  an  unfortunate  condition  of  things; 
while  there  came  to  be  a  satisfactory  provision  for 
local  criminal  jurisdiction,  it  was  necessary  in  nearly 
all  civil  cases  (for  the  slight  civil  jurisdiction  which 
the  Justices  of  the  Peace  acquired  is  negligible)  to 
begin  the  action  in  one  of  the  courts  at  Westminster; 
and  the  case  was  tried  there  unless  before  (nisi  prius) 
it  was  reached  in  the  regular  succession  of  cases  the 
justices  of  assize  held  their  session  in  the  county 
concerned.2  Thus  the  old  communal  hundred  court 
became  a  superfluity  and  soon  had  no  work  to 

hear  of  actions  being  transmitted  to  it  by  the  king's  court." — P. 
and  M.  i,  530. 

>  See  above,  pp.  44,  45. 

2  See  above,  p.  161.  It  was  not  until  the  nineteenth  century 
that  any  proper  provision  was  made  in  the  localities  for  minor  civil 
iurisdiction. 


176        Period  of  Constitution  Making 

do,    but    no    formal    act    brought    its   existence    to 
an  end.1 

Before  speaking  of  the  decline  of  the  second  great 
class  of  local  courts,  those  in  private  hands,  a  word 
should  be  said  in  passing  of  the  borough  courts.2 
The  boroughs  had  been  steadily  acquiring  privileges 
during  the  twelfth  century,  and  their  courts  were 
flourishing.  These  courts  were  destined,  in  the  course 
of  time,  to  become  assimilated,  in  a  general  way,  to  the 
new  royal,  local  system,  and  were  to  be  permanent 
in  all  the  more  important  boroughs.  But  until  they 
had  thus  acquired  some  common  characteristics,  it 
is  very  hard  to  generalise  concerning  them.3  They 
still  corresponded  somewhat  loosely  to  the  hundred 
courts,  but,  as  has  been  shown,4  boroughs  had  passed 
under  lords,  and  the  extent  to  which,  in  the  thirteenth 
century,  they  were  independent  of  their  lords'  juris- 
diction varied  infinitely.  The  boroughs  were  naturally 
suspicious  of  the  newfangled  methods  of  the  king's 
courts,  which  seemed  so  potent  in  extending  the 
royal  jurisdiction,  and  were,  at  this  time,  holding 
firmly  to  the  old  forms.  The  more  important  sessions 

•The  provision  in  the  County  Courts  Act  of  1867  to  the  effect 
that  no  action,  which  can  be  brought  in  a  county  court  (in 
the  later  sense),  shall  be  brought  in  a  hundred  or  other  inferior 
court  that  is  not  a  court  of  record  may  perhaps  be  said  to  mark 
in  a  very  distant  way  the  formal  ending  of  hundredal  jurisdiction. 

2  For  a  very  full  account  of  the  borough  courts  and  the  law 
administered  therein,  see  Miss  Bateson's  Introduction  to  Borough 
Customs,  vol.  ii.  (Selden  Society  Publications). 

J"The  cities  and  boroughs — vills,  that  is,  which  have  attained 
to  a  certain  degree  of  organization  and  independence — have  courts 
of  their  own.  But  of  these  municipal  courts  very  little  can  be 
said  in  general  terms;  they  are  the  outcome  not  of  laws,  but  of 
privileges." — P.  and  M.  i.,  532. 

4  See  above,  p.  96. 


The  Judiciary  177 

of  the  borough  courts  were  probably  supposed  to  be 
attended  by  all  the  burgesses,  who  were  to  find  the 
judgments  after  the  fashion  of  the  suitors  in  the  shire 
and  hundred  courts.  But,  as  in  the  shire  courts, 
there  was  a  tendency,  from  early  times,  to  place  this 
function  in  the  hands  of  a  selected  group.  Where 
such  a  group  became  identified  with  the  body  of 
borough  officials,  the  government  of  the  borough 
became  very  aristocratic.  To  some  boroughs  was 
granted,  in  the  thirteenth  century,  their  own  view 
of  frankpledge,  and  this  very  effectually  drew  them 
out  from  under  the  sheriff's  jurisdiction.1 

Like  the  old  communal  courts,  the  private  courts 
also  began  to  be  straitened  in  their  jurisdiction  by  the 

1  Miss  Bateson's  comment,  suggested  by  the  passing  of  the 
borough  customs,  can  be  appropriately  quoted  in  connection  with 
our  consideration  of  the  general  decline  of  the  old,  local  sys- 
tem of  justice.  "The  'dust  on  antique  time  would  lie  unswept' 
if  all  the  objects  of  borough  ambition  had  been  attained  and  re- 
tained, but,  provided  the  dead  past  be  not  restored  to  tyrannise 
over  us,  at  a  safe  distance  we  may  admire  its  picturesque  ruins 
and  half  regret  the  crujl  work  of  dissolution  done  by  the  common 
law  in  the  name  of  reformation.  For  the  sake  of  uniformity  of 
worship,  many  quaint  rites  have  been  abandoned;  in  the  great 
temple  of  the  common  law  the  side  chapels  are  altarless  and  empty. 
The  justice  of  the  local  courts  has  been  ruthlessly  condemned 
as  incompetent,  provincial,  archaic,  unprogressive,  unable  to 
adapt  itself  to  a  new  state  of  society.  The  old  local  justice  is 
'antiquity  forgot,  custom  not  known,'  because  in  the  system  of 
national  justice  the  general  destroyed  the  particular,  no  doubt  for 
good  reason.  And  yet  for  the  true  understanding  of  the  'jus 
et  consuetude  regni,'  founded  upon  a  rock-bed  of  unwritten  tra- 
dition, on  general  immemorial  custom,  it  may  be  well  to  stoop  to 
examine  the  unworthy  particular.  In  borough  custom  we  have 
a  neglected  series  of  rocks,  not  primary  in  antiquity,  but  full  of 
the  signs  of  life,  and  the  extinct  forms  which  it  permits  us  to  handle 
have  a  place  in  the  history  of  the  making  of  the  common  law. " — 
Borough  Custom  ii.,  clvi.  (Selden  Society  Publications). 


1 78       Period  of  Constitution  Making 

great  extension  of  royal  justice  in  the  reign  of  Henry 
II.1  But  in  their  case,  there  was  material  for  a  struggle 
against  the  growing  power.  Justice  was  profitable, 
and  the  lords  who  possessed  it  wanted  to  retain  what 
they  had;  there  was  little  chance  of  their  acquiring 
more.  Grants  to  individuals  of  judicial  authority, 
as  well  as  of  various  immunities,  were  still  common 
in  the  late  twelfth  and  during  the  thirteenth  century; 
but  the  general  terms,  used  in  such  grants  at  an  earlier 
time,  were  very  carefully  limited.  As  the  idea  grew 
that  criminal  justice  was  the  king's  business,  and  as 
capital  punishment  took  the  place  of  fine,  the  amount 
of  such  justice  granted  to  individuals  grew  steadily 
less.  And  when  the  kings  began  to  reflect  upon  the 
amount  of  criminal  jurisdiction  which  some  individuals 
already  held,  they  did  not  scientifically  study  the  past 
in  order  to  understand  the  matter;  they  came  to  the 
conclusion  that,  while  there  might  be  a  kind  of  civil 
and  petty  criminal  justice  that  went  with  the  possession 
of  a  manor,  this  higher  kind  could  never  have  been 
lawfully  acquired  except  by  definite  royal  grant.2 

That  no  such  distinction  as  this  was  made  at  the 
time  of  the  Conquest,  nor  for  long  after,  it  is  hardly 
necessary  to  state.  But  it  was  this  attitude  of  mind 
which  led  directly  to  an  act  of  Edward  I.  which  had  a 
profound  effect  upon  the  later  history  of  private  courts. 
In  1278,  he  issued  the  Writ  Quo  Warranto,  which 
demanded  by  "what  warrant"  those  who  were  exer- 
cising what  he  was  pleased  to  consider  regalian 

•  The  best  account  of  private  jurisdictions  in  the  thirteenth 
century  (with  many  hints  of  their  earlier  history)  is  to  be  found 
in  Maitland's  Introduction  to  Select  Pleas  in  Manorial  Courts 
(Selden  Society  Publications). 

»  On  the  origin  of  private  jurisdiction,  see  above,  pp.  92-94. 


,-(.* 


The  Judiciary  179 

rights  were  doing  so.  It  was  assumed  that,  if  they 
could  not  show  a  written  grant  from  fohe  king,  the 
only  means  of  acquiring  such  rights  in  Edward's 
time,  they  were  to  be  deprived  of  them.  This  roused 
such  formidable  protest  that  Edward  abated  his 
demand;  he  may  possibly  have  foreseen  the  necessity 
of  this  from  the  first.  Those  who  could  show  an  un- 
broken exercise  of  these  rights  from  the  coronation 
of  Richard  I.  were  allowed  to  retain  them.  But  two 
important  things  were  accomplished.  In  the  first 
place,  any  further  acquisition  of  such  rights  was  out 
of  the  question ;  and,  mindful  of  the  possibilities  of 
forfeiture  and  deprivation  which  a  powerful  monarchy 
always  possessed,  it  is  easy  to  see  that  the  exercise  of 
high  judicial  power  by  private  individuals  would, 
at  no  distant  time,  pass  away.  In  the  second  place, 
the  theory  that  part  of  the  jurisdiction  was  exercised 
by  royal  grant,  and  part  by  manorial  right,  was  so 
emphasised  that  it  soon  became  an  established  prin- 
ciple. This  principle  resulted  in  a  distinction  between 
courts  that  must  next  be  examined. 

Private  courts  had  been  quick  to  adopt  the  new 
royal  procedure  of  jury  presentment  and  trial,  though 
the  limited  number  of  suitors  on  some  manors  inter- 
fered with  this.  For  private  courts  in  England  were 
becoming,  for  the  most  part,  manor  courts.  The 
courts  of  great  honours,  the  true  feudal  courts  com- 
posed of  vassals,  had  always  been  less  important  in 
England  than  on  the  continent ;  and  now  they  were  be- 
coming extinct,  not  only  through  the  invasion  of  the 
royal  courts  and  the  limitations  placed  upon  grants 
of  justice,  but  through  an  important  series  of  legis- 
lative acts  of  Edward  I.  which  checked  subinfeudation 


180        Period  of  Constitution  Making 

and  tended  to  break  down  the  feudal  hierarchy.1  A 
distinction  began  to  be  made  in  the  judicial  work 
which  the  lord  did  in  his  manor  court.  He  might 
be  doing  work  analogous  to  that  of  the  sheriff  in  his 
tourn,  if  by  grant  or  prescription  it  had  come  to  him. 
But  this  was  criminal  jurisdiction  and  view  of  frank- 
pledge;  it  was,  according  to  the  view  we  have  just 
seen  develop,  a  strict  regality  and  could  only  be  car- 
ried on  under  royal  commission.  Hence  a  court  which 
did  this  was  a  royal  court,  a  court  of  record;  it  must 
be  sharply  distinguished  from  a  court  which  the  lord 
held  as  of  his  own  right,  which  he  held  because  he 
had  tenants.  A  new  and  distinguishing  name,  that 
of  Leet,  was  applied  to  it.  This  term,  whose  ante- 
cedent history  is  very  obscure,  was  probably  first  used 
in  this  connection  in  the  reign  of  Edward  I.  From 
that  time,  we  hear  of  Leets,  the  adjective  use  of  the 
word,  as  in  Court  Leet,  not  appearing  until  well  into 
modern  times.  Here,  then,  was  one  part  of  the  old, 
private  jurisdiction,  modified  in  its  content  and  pro- 
cedure by  innovations  from  the  king's  courts,  and 
finally  taken  up  into,  and  made  a  part  of,  the  royal 
judicial  system;  the  lord's  steward  who  conducted  this 
court  now  conducted  it  as  a  royal  officer.  Thus  it 
passes  out  of  the  field  of  our  immediate  consideration; 
but  it  may  be  remarked  here  that  it  survived  the 
middle  ages,  still  in  a  quite  vigorous  condition,  and, 
though  more  and  more  limited  by  a  new  and  better 
local  machinery,  the  justice  of  the  peace  system, 
some  traces  of  it  are  to  be  seen  at  the  present  day. 

1  A  careful  study  should  be  made  of  documents  39,  40,  42,  and 
45  in  A.  and  S.  For  a  discussion  of  these  acts,  see  Stubbs,  Con- 
stitutional History,  §  179,  passim;  also  Medley,  p.  291. 


The  Judiciary  181 

While  the  Leet  was,  in  theory,  a  jurisdiction  quite 
separate  from  that  which  the  lord  possessed  in  his 
own  right,  it  was  customary  to  exercise  both  in  the 
same  tribunal.  It  now  remains  to  ask  what  was  this 
residuum  of  truly  private  jurisdiction  and  what  was 
its  fate.  It  is  heard  of  under  the  name  of  Court 
Baron, 1  a  name  that  came  into  common  use  simul- 
taneously with  Leet.  It  follows  from  what  has  been 
said  of  the  Leet  that  the  Court  Baron  had  a  civil 
jurisdiction.  Now  the  typical  manor  contained  both 
freemen  and  villeins,  the  freemen  usually  being  in  a 
marked  minority.  Thus  the  Court  Baron,  as  had 
always  been  the  case  with  manor  courts,  was  made  up 
of  these  two  classes.  A  distinction  between  them  had 
appeared  in  the  procedure;  it  seems  to  have  done  no 
violence  to  the  idea  of  judgment  by  peers  for  inferior 
to  be  judged  by  superior,  but  superior  could  not  be 
judged  by  inferior — villeins  were  judged  by  freemen 
and  villeins,  freemen  only  by  freemen.  But  now 
something  had  arisen  which  farther  distinguished  the 
classes  in  these  courts ;  it  was  the  increasing  use  of  the 
jury  there.  The  lord  could,  by  his  own  authority, 
make  his  villeins  take  oath  as  jurors;  but  the  jury 
was  a  royal  institution,  and  by  the  accepted  theory 
of  this  period,  no  one  could  do  the  same  by  freemen 
without  a  royal  commission. 2  This  split  in  the  per- 

1  The  significance  of  the  word  baron  in  this  connection  is  not  at 
all  clear.  The  terms  by  which  private  jurisdictions  were  ordinarily 
known  in  earlier  times  were  Libera  Curia  and  Halimote.  The  for- 
mer usually  indicated  the  higher  judicial  authority  of  a  lord,  but 
did  not  signify  a  court  of  freemen  as  opposed  to  unfree.  The  latter, 
lasting  on  from  Anglo-Saxon  times,  probably  meant  hall-court, 
thus  distinguishing  the  court  held  in  the  hall  of  the  manor  from 
the  old  open-air  courts  of  hundred  and  shire. 

*  This  was  definitely  laid  down   as   law  in   article    18   of   the 


182        Period  of  Constitution  Making 

sonnel  and  procedure  of  the  Court  Baron  was  soon 
reflected  in  nomenclature ;  the  Court  Baron  (in  a  nar- 
rower sense)  was  the  lord's  private  court  for  his  freemen, 
while  the  Court  Customary,  that  which  administered 
the  custom  of  the  manor,  was  his  villein  court. 

The  later  history  of  these  two  courts  was  not  at  all 
the  same.  The  Court  Baron  very  soon  became  deca- 
dent. The  fact  that  the  king's  courts  were  so  desirable 
and  possible  a  place  for  freemen  to  bring  an  increasing 
variety  of  actions  was,  of  course,  the  main  reason  for 
this.  But  there  were,  besides,  a  number  of  specific 
causes  which  developed  in  the  middle  and  latter  part 
of  the  thirteenth  century.1  'A  change  in  the  law  of 
distraint,  which  made  it  possible  for  a  lord  to  distrain 
his  tenant  for  rents  or  services  without  judgment 
of  a  court,  made  his  own  court  of  much  less  value  to 
him;  for  that  had  been  the  place  where  he  could  most 
readily  obtain  such  judgments.  In  1285,  the  lord 
was  given  an  action  in  the  king's  court  which  made 
it  possible  for  him  to  eject  his  freehold  tenant  for 
default  of  service.  The  forty-shilling  clause  in  the 
Statute  of  Gloucester  had,  through  its  peculiar  inter- 
pretation, the  same  effect  in  limiting  the  competence 
of  the  Court  Baron  that  it  had  in  the  case  of  the  com- 
munal courts.2  But  perhaps  the  most  decisive  matter 
was  the  threshing  out,  in  the  thirteenth  century,  of 
the  question  whether  a  lord's  court  should  be  a  court 
of  appeal  from  the  courts  of  his  vassals.  Such  appeal 

Provisions  of  Westminster,  1259  (see  A.  and  S.,  p.  66),  and 
was  embodied  in  the  confirmation  of  these  Provisions  known  as  the 
Statute  of  Marlborough,  1267. 

'  Maitland  fully  discusses  all  these  causes  in  his  Introduction 
to  Select  Pleas  in  Manorial  Courts,  pp.  lii.-lx. 

'See  above,  pp.  173,  174. 


The  Judiciary  183 

had  evidently  been  the  practice  in  some  countries, 
and  there  was  clearly  a  struggle.  But  the  lesser 
vassals  were  opposed  to  it  and  so  was  the  king.  Brae- 
ton  argued  somewhat  uncertainly  about  it  on  the  basis 
of  the  wording  of  the  writ  of  right, *  which  told  the  lord 
to  do  right  in  his  court  and  that  if  he  did  not  the 
sheriff  would.  This  implied  that,  in  default  of  justice, 
the  case  had  been  taken  immediately  from  the  court 
of  first  instance  to  the  king's  court.  But  the  writ  of 
right  had  to  do  with  only  one  class  of  cases,  albeit 
a  very  important  class.  In  the  Provisions  of  West- 
minster, however,  is  found  a  statement  which  covered 
the  matter  broadly  and  conclusively:  "None  but  the 
king  from  henceforth  shall  hold  plea  in  his  court  of  a 
false  judgment  given  in  the  court  of  his  tenants;  be- 
cause such  pleas  do  especially  belong  to  the  king's 
crown  and  dignity."2  "We  may  regard  this  as  a 
turning  point  in  the  history  of  the  feudal  courts.  If  a 
great  baron  had  been  able  to  make  his  court  a  court  not 
merely  for  his  immediate  tenants  but  also  a  court  with 
a  supervisory  jurisdiction  over  their  courts,  it  would 
have  been  worth  his  while  to  keep  his  court  alive; 
it  might  have  become  the  fountain  of  justice  for  a 
large  district.  But  a  court  merely  for  the  suits  of  his 
great  freehold  tenants,  some  dozen  or  half-dozen 
knights,  was  hardly  worth  having  and  became  less 
worth  having  as  time  went  on."3  There  were,  of 

1  For  the  origin  of  the  writ  of  right,  see  above,  p.  135. 

2  A.  and  S.,  p.  66.     The  words  false  judgment    are    important, 
for  it  was  by  enforcing  the  principle  here  stated  that  great  progress 
was  made  towards  building  up  the  modern  conception  of  appellate 
jurisdiction.      For  an  account  of  the  origin  of  appeal  from  court 
to  court,  see  P.  and  M.  ii.,  664-669. 

»  Maitland,  Introduction  to  Select  Pleas  in  Manorial  Courts,  p.  lix. 


1 84        Period  of  Constitution  Making 

course,  many  lords,  whose  freeholders  were  not  knights, 
who  had  manors  and  hence  courts  of  their  own;  with 
them  this  matter  of  appeal  had  no  concern.  For  the 
reasons  enumerated,  then,  the  Court  Baron,  the  civil 
jurisdiction  which  lords,  big  or  little,  had  over  their 
freehold  tenants,  ceased  to  be  operative  long  before 
the  end  of  the  middle  ages.  Something  approaching 
it  was  perhaps  occasionally  used  in  connection  with 
the  jurisdiction  over  villeins. 

The  villein  court,  the  Court  Customary  of  the  manor, 
lasted  much  longer.  But  forces  were  at  work  in  the 
fourteenth  and  fifteenth  centuries  that  were  steadily 
undermining  it.  It  has  been  seen  that  the  outward 
mark  of  unfreedom  in  the  case  of  the  villein  was  that 
he  could  not  bring  an  action  in  the  king's  courts,  and 
that  these  courts  came  to  their  conclusion  upon  an 
individual's  status  by  ascertaining  the  degree  of 
uncertainty  in  his  service. l  Two  changes,2  which 
began  in  the  thirteenth  century,  so  fundamentally 
modified  manorial  conditions  in  the  two  following 
centuries  as  to  do  away  with  this  uncertainty  of  service. 
The  first  was  the  commutation  of  payments  in  kind 
and  labour  to  payments  in  money.  The  increasing  use 
of  money  as  a  medium  of  exchange  made  it  possible  for 
the  lord  to  give  something  for  labour  other  than  land, 
and  for  the  tenant  to  give  something  for  land  other 
than  labour.  A  man  could  leave  the  manor  writh  some 
chance  of  placing  himself  more  advantageously  else- 
where ;  at  least,  he  could  sell  his  labour  where  he  could 

1  See  above,  pp.  82-84.. 

2  These  changes  were  caused  mainly  by  economic   and  social 
forces  that  cannot  be  considered  here.     See  Cheney,  The  Disap- 
pearance of  English  Serfdom,  The  English  Historical  Review  xv., 
30-37,  and  Page,  The  End  of  Villainage  in  England, 


The  Judiciary  185 

get  the  most  for  it.  This  tended  to  break  up  the 
manorial  economy  and  to  make  labour  free.  Fugitives 
from  manors  became  more  numerous;  and  such  fugi- 
tives, if  no  proofs  were  brought  to  the  contrary,  were 
always  accounted  free  before  the  king's  courts.  This 
rise  of  the  servile  classes  was  favoured  by  the  Black 
Death  of  1348,  which,  for  a  time,  placed  the  peasantry 
upon  the  right  side  of  the  labour  market,  and  possibly 
to  a  slight  extent  by  the  peasant  revolt  of  1381.  The 
growth  of  copyhold  tenure  was  a  partial  reflection  of 
this  change.1  This  tenure  certainly  looked  toward 
that  definiteness  in  the  kind  of  service  to  be  rendered 
from  day  to  day  which  was  the  touchstone  of  the 
royal  courts  in  determining  the  free  status  of  him  who 
sought  remedy  in  them.  But  the  tenure  still  retained 
some  servile  characteristics,  as,  for  instance,  in  the 
form  of  alienation;  and  when,  a  century  or  more 
later,  it  came  to  a  question  of  the  lord's  right  to  evict 
his  copyhold  tenant,  the  king's  courts  usually  upheld 
that  right.2 

The  second  change  was  the  lord's  parcelling  out  of 

1  In  copyhold  tenure,  instead  of  the  service  being  based  upon  im- 
memorial custom,  a  definite  entry  of  the  service  was  made  upon 
the  manor  roll,  and  ordinarily  a  copy  of  this,  in  the  nature  of  an 
indenture,  was  in  the  hands  of  the  peasant. 

1  This  was  certainly  a  denial  of  the  free  character  of  the  tenure 
as  such.  The  frequent  divorce,  in  England,  between  tenure  and 
status  has  already  been  commented  upon;  see  above,  p.  84.  The 
occasion  of  these  evictions,  whose  number  has  probably  been 
greatly  exaggerated,  was  the  enclosing  of  large  tracts  of  land  for 
the  purpose  of  raising  sheep.  This  use  of  land  was  found  in- 
creasingly profitable  in  the  late  fifteenth  and  early  sixteenth 
centuries.  After  this  particular  motive  for  seizing  copyhold  land 
subsided,  the  nature  of  the  tenure  ceased  to  be  a  burning  question, 
and  copyhold  served,  in  all  essentials,  as  a  free  tenure.  During 
the  last  century,  this  tenure  has  been  rapidly  disappearing. 


i86        Period  of  Constitution  Making 

his  demesne  into  leases  at  a  money  rent.  Where  this 
was  done,  the  lord  ceased  to  be  an  immediate  em- 
ployer of  labour.  The  labour  service  of  his  villeins  and 
all  the  petty  litigation  and  consequent  fines  connected 
therewith — an  important  part  of  the  manor  court's 
work — ceased  to  be  a  matter  of  consequence  to  the 
lord.  He  was  becoming  pure  landlord.  "That  fun- 
damental relation  between  the  lord  and  the  villein, 
that  the  former  could  force  the  latter  to  stay  on  his 
land  and  work  for  him,  was  now  a  relation  without 
special  interest  or  value."  l 

It  should  be  constantly  kept  in  mind  in  connection 
with  these  two  changes  that  the  royal  courts  always 
favoured  liberty,  that  is,  they  sought  to  draw  to  them- 
selves as  much  litigation  as  possible.  When  the 
question  of  villein  status  was  raised,  the  burden  of 
proof  always  rested  upon  the  lord,  and  it  was  usually 
a  considerable  burden  and  hard  to  handle ;  the  kind  of 
proof  to  be  accepted  was  limited  and  the  court  was 
strict.  The  Court  Customary  was  thus  being  weak- 
ened along  two  lines.  Fundamental  economic  changes 
in  the  manor  were  so  modifying  society  and  the  re- 
lations of  lord  and  peasant  as  to  remove  its  raison 
d'etre ;  as  it  became  less  and  less  a  source  of  income 
to  the  lord,  he  would  cease  to  strive  to  maintain 
it.  Secondly,  the  all-absorbing  royal  courts  were 
ready  to  take  advantage  of  every  change  which  might 
be  construed  as  adding  to  the  ranks  of  freemen,  and 
thus  of  possible  litigants.  There  were  other  ways 
in  which  individual  villeins  became  free  in  the  later 
middle  ages  which  it  is  unnecessary  to  discuss  here. 
Only  a  glance  at  the  fundamental  changes  which 

1  Cheney  in  English  Historical  Review  xv.,  36. 


The  Judiciary  187 

affected  the  whole  class  has  been  attempted.  The 
Court  Customary  did  not  die  suddenly ;  it  was  decadent 
at  the  end  of  the  middle  ages,  but  had  some  importance 
well  into  modern  times.  However,  the  forces  which 
were  to  bring  it  to  an  end  have  been  seen  in  full  opera- 
tion in  the  fourteenth  and  fifteenth  centuries.  With 
this  court  is  completed  the  list  of  the  older  local 
courts  which  fell  before  the  royal  judicial  system. 
It  remains  now  to  finish  the  consideration  of  the  at- 
tempts of  that  system  to  put  into  the  localities  some- 
thing that  could  work  in  harmony  with  itself,  and 
that  could  adequately  furnish  that  local  administration 
of  justice  which,  in  some  form,  is  always  necessary.1 


It  is  especially  needful  in  any  judicial  system  that 
much  criminal  business  be  done  quickly  and  on  the 
spot.  Frequent  and  efficient  as  judicial  iters  might 
become,  the  king  would  find  it  necessary  to  have 
resident  criminal  justices.  From  what  has  been  said 
of  the  sheriff's  tourn,  it  might  seem  that  that  was 
destined  to  meet  this  need.  But  hardly  had  the 
tourn  come  into  existence  before  the  king  found  that  he 
must  have  something  more  and  something  different. 
The  sheriff  was  too  great  a  local,  landed  personage  to 
be  entrusted  with  a  power  that  would  have  to  be 
extended  in  many  directions  as  the  peace-keeping  and 
administrative  activities  of  the  central  government 
reached  out  and  touched  the  localities.  Henry  II. 's 
dissatisfaction  with  the  sheriffs  and  the  grounds  for  it 
are  shown  in  the  famous  Inquest  of  the  Sheriffs.2  The 
situation  called  for  the  creation  of  a  local  official  who 

1  See  above,  pp.  167-171.  J  A.  and  S.,  document  15. 


1 88       Period  of  Constitution  Making 

should  be  strictly  under  royal  control  and  to  whom 
part  of  the  sheriff's  work  should  be  given.  Such  a 
creation  we  find  in  the  regular  establishment  of  coroners 
in  the  reign  of  Henry  II.  There  is  evidence  of  some- 
thing very  like  a  coroner  in  Henry  I.'s  time,  when 
occasional  mention  was  made  of  justices  who  were 
to  "keep  the  pleas  of  the  crown."  It  was  in  the 
earlier  reign  that  the  conception  of  crown  pleas  first 
became  at  all  clear.1  Like  Henry  I.'s  other  creations, 
coroners,  if  there  were  any,  disappeared  under  Stephen. 
Henry  II. 's  coroner  was  a  local  justice,  chosen  prob- 
ably by  the  shire  court  and  from  the  class  of  knights. 
His  being  a  justice  implies  that  he  tried  cases  and 
could  empanel  a  jury  to  make  presentments.  If  he 
.had  not  actually  tried  cases,  he  could  not,  according 
to  the  ideas  of  the  time,  have  used  such  a  jury.  But 
he  also  kept  the  pleas  of  the  crown,  and  this  came  to 
be  his  special  work;  it  meant  that  he  held  preliminary 
hearings  and  kept  a  record  of  local  criminal  matters 
for  later  use  by  sheriff  or  itinerant  justice.  This  was 
his  principal  work  in  Richard's  reign,  as  is  evidenced 
by  the  well-known  mention  of  him  in  the  commission  of 
the  itinerant  justices  in  1 194.2  This  has  often  been 
regarded  as  the  order  creating  the  office,  but  the  cor- 
oner's previous  existence  has  been  clearly  proved, 
and  this  order  was  undoubtedly  for  the  purpose  of 
making  coroners  general  throughout  the  counties  and 
fixing  their  number  and  functions.  But  that  the 
coroner  did  not  cease  to  be  a  justice  at  least  until  1215 
is  proved  by  article  24  of  Magna  Carta,  which  pro- 
hibited the  sheriff  as  well  as  the  coroner  from  holding 
pleas  of  the  crown.3  The  sheriff  continued  thereafter 

'  See  above,  p.  147,  note  a.     J  A.  and  S.,  p.  30.     »  A.  and  S.,  p.  46. 


The  Judiciary  189 

to  be  a  justice  in  the  lesser  criminal  cases  and  in  civil 
cases,  but  the  coroner's  judging  functions  became 
very  slender  and  his  duties  largely  those  which  he 
has  since  kept.  But  there  were,  for  a  time,  a  vague- 
ness  and  an  elasticity  about  them  which  allowed  many 
exceptions  and  which  are  a  reminder  of  the  original 
motive  in  creating  the  office.  During  the  thirteenth 
century,  the  coroner  held  inquests  in  cases  of  sudden 
death  or  injury,  and  preliminary  hearings  in  criminal 
cases  in  which  appeals  had  been  made;  his  place  in 
the  county  court  was  often  much  like  that  of  the 
sheriff,  and  he  might  try  civil  cases  there;  he 
could  even  hold  the  sheriff's  tourn.  But  aside  from 
his  judicial  functions,  and  of  more  importance  than 
some  of  them,  was  his  work  as  a  local  administra- 
tive official  of  the  king.  In  this,  he  supplemented 
or  took  the  place  of  the  sheriff.  In  fact,  he  was 
often  so  much  like  the  sheriff  that  it  is  hard  for 
the  modern  mind  to  see  what  the  distinction  was. 
One  thing  is  certain:  the  kings  intended  that  these 
locally  elected  knights,  two  or  four  to  each  shire,  should 
check  the  power  of  the  single  aristocratic  sheriff,  under 
whom  there  might  indeed  be  more  than  one  shire.  It 
was  not  long  after  the  creation  of  the  coroner  that  the 
choosing  of  certain  juries  was  taken  from  the  sheriff 
and  given  to  the  county  court.  It  was  another  royal 
method  of  limiting  the  sheriff  and  guaranteeing  good 
local  service  by  allowing  the  people  to  participate  in  it. 
But  the  coroner  proved  no  complete  solution  of  the 
local  government  problem.  Before  the  end  of  the 
thirteenth  century,  local  complaints  were  made  about 
him  as  well  as  about  the  sheriff.  Just  why  limitations 
were  so  early  placed  upon  the  coroner's  judicial 


Period  of  Constitution  Making 

activities  is  hard  to  tell. i  Inasmuch  as  the  final  solution 
of  the  problem  was  found  in  groups  of  local  magis- 
trates appointed  by  the  king,  one  is  led  to  surmise  that 
the  trouble  with  the  coroner  lay  in  his  elective  char- 
acter, but  our  imperfect  knowledge  of  the  conditions 
of  the  time  prevents  us  from  understanding  why. 
But  the  coroner  was  the  king's  first  experiment  in 
building  up  a  local  government  in  harmony  with  the 
rapidly  growing  central  government,  and  he  hit  upon 
knights  as  the  class  best  fitted  for  this  purpose.  These 
facts,  together  with  the  considerable  local  importance 
which  the  coroner  continued  to  have,  are  reasons  for 
noticing  him  in  this  connection.2 

Besides  the  local  use  of  knights  just  mentioned,  we 
have  noted  their  increasing  importance  on  all  sorts 
of  juries  and  have  seen  them  associated  with  justices 
in  holding  the  assizes;  and  when  gaol  deliveries  were 
entrusted  to  local  commissions,  knights  might  have 
to  exercise  criminal  justice  of  the  highest  sort.  This 
last-mentioned  use  of  knights  was,  as  will  presently 
appear,  a  very  interesting  foreshadowing.  But  we 
have  now  to  consider  knights  in  a  new  capacity,  as 
conservator es  pads  or  custodes  pads,  or,  without  special 
designation,  their  use,  on  certain  occasions,  for 


poses  directly  or  indirectly  connected  with  keeping 
the  peace.  Here  they  were  clearly  supplementing  the 
work  of  both  sheriffs  and  coroners,  and  were  often 
regarded  as  a  check  upon  the  sheriffs.  The  king  was 

1  It  is  interesting  to  note  that  the  right  to  empanel  a  jury  which 
the  coroner  still  has  is  a  survival  of  that  transient  twelfth-century 
phase  of  his  existence  when  he  was  a  bona  fide  justice. 

3  A  most  satisfactory  account  of  the  origin  and  activities  of 
coroners  is  to  be  found  in  Gross's  Introduction  to  Coroners'  Rolls 
(Selden  Society  Publications,  vol.  ix.). 


The  Judiciary  191 

evidently  still  dissatisfied  with  the,  policing  and  general 
administering  of  the  localities.  It  is  interesting  to 
note  how  early  in  the  history  of  the  coroners  this  new 
use  of  knights  began.  In  1195,  the  justiciar,  Arch- 
bishop Hubert  Walter,  issued  an  edict  by  which 
knights  were  appointed  to  take  oaths  throughout  the 
kingdom  from  all  over  fifteen  years  old.  By  this 
oath,  men  bound  themselves  not  to  be  thieves,  robbers, 
or  the  receivers  of  such,  to  join  in  the  hue  and  cry, 
etc.;  and  malefactors  taken  as  a  result  of  the  edict 
were  first  to  be  delivered  to  the  knights  and  the  knights 
were  to  deliver  them  to  the  sheriffs.1  In  the  "writ 
for  enforcing  watch  and  ward  and  the  assize  of  arms"2 
in  1252,  the  king  assigned  two  knights  to  each  sheriff, 
the  three  to  co-operate  in  taking  oaths  throughout 
their  shire  that  proper  arms  be  borne,  constables 
appointed,  and  other  matters  looking  to  the  preserva- 
tion of  the  peace  attended  to.  By  the  Provisions  of 
Oxford,  12.58,  four  knights  from  each  county  were 
chosen  to  keep  the  pleas  of  the  crown3;  but,  in  their 
case,  this  function  was  to  be  interpreted  very  amply: 
they  were  expected  to  do  almost  anything  in  the  way 
of  detecting  criminals  and  preparing  cases  for  the 
itinerant  justices.  Equally  broad  powers,  but  with 
more  detailed  instructions  on  the  use  of  the  posse 
comitatus  and  the  pursuit  of  criminals,  were  given  to 
the  custodians  of  the  peace  appointed  in  1264.*  Such 
was  the  increasing  need  of  knights  that,  in  1278, 
the  king  issued  a  writ  for  what  is  known  as  "distraint 
of  knighthood"5:  it  was  to  compel  all  whose  land 

1  Stubbs,  Select  Charters,  p.  264.  *  Ibid.,  pp.  371-373. 

3  A.  and  S.,  p.  57.         «  Stubbs,  Select  Charters,  pp.  411,  412. 
'  A.  and  S.,  pp.  70,  71, 


192        Period  of  Constitution  Making 

brought  an  income  of  twenty  pounds  a  year,  whether 
they  held  from  the  king  or  others,  who  "ought  to  be 
knights  and  are  not, "  to  receive  the  insignia  of  knight- 
hood within  a  specified  time.  The  evident  disin- 
clination to  become  knights  is  a  striking  testimony 
to  the  many  duties  and  burdens  of  the  class.  In  the 
early  years  of  Edward  I.,  knights  were,  upon  several 
occasions,  put  to  uses  similar  to  those  just  mentioned. 
In  the  famous  Statute  of  Winchester,1  1285,  Edward 
repeated,  with  some  important  additions,  the  previous 
assizes  of  arms  and  watch  and  ward ;  and  in  the  elabo- 
rate arrangements  for  keeping  the  peace,  in  the  local 
"constables  chosen"  and  "justices  assigned,"  there 
was  an  important  advance  in  the  royal  attempts  to 
devise  an  effective  local  government  controlled  by, 
and  in  harmony  with,  the  central. 

The  decline  of  the  sheriff's  power  kept  pace  with 
the  increasing  local  use  of  knights.  The  Statute  of 
Marlborough,  1267,  exempted  from  the  sheriff's  tourn 
all  above  the  degree  of  knights  unless  they  were 
specially  summoned.  Many  boroughs  were  allowed 
their  own  view  of  frankpledge,  thus  removing  an  im- 
portant element  from  the  tourn. 

Edward  II.  continued  the  use  of  the  new  local 
guardians  of  the  peace,  with  some  enlargement  of 
function  on  the  administrative  side.  Year  after  year 
commissions  were  issued  appointing  them  until  they 
were  regarded  as  an  indispensable  and  regular  part 
of  government;  and  at  the  beginning  of  Edward  III.'s 
reign,  they  were  about  to  receive  the  powers  and 
organisation  which  gave  their  office  its  completed 
form.  They  were  appointed  by  the  king,  not  locally 

>  A.  and  S.,  pp.  76-79. 


The  Judiciary  193 

elected.  This  point  must  receive  some  notice  here. 
The  coroner  failed  to  supply  the  desideratum  in  the 
local  government,  perhaps  because  of  his  elective 
character.  It  was  natural  that  he  should  have  been 
locally  elected,  for  he  originated  at  just  the  time  that 
the  king  was  learning  the  wisdom  of  taking  from  the 
sheriff  the  appointment  of  the  non-judicial  juries;  and, 
like  the  knights  on  those  juries,  the  coroners  dealt 
with  matters  connected  with  the  sheriffs'  work.  But 
in  the  thirteenth  century  a  new  method  was  tried ;  the 
king  himself,  probably  from  locally  furnished  lists, 
appointed  the  knights  who  were  to  be  keepers  of  the 
peace.  And,  as  far  as  can  be  learned,  this  remained 
the  method,  with  the  exception  of  a  few  occasions 
early  in  Edward  I.'s  reign.  On  those  occasions,  local 
election  was  used,  and,  it  may  be  added,  was  often 
used  at  other  times  to  fill  vacancies  when  death  or 
other  cause  suddenly  terminated  the  service  of  those 
appointed  by  the  king.  The  system  of  royal  appoint- 
ment has  been  abundantly  justified  by  all  the  later 
history  of  the  justice  of  the  peace.  He  was  a  king's 
official  and  his  court  a  king's  court,  a  court  of  rec- 
ord. His  appointment  by  the  king  seems  to  have 
been  an  indispensable  element  in  securing  the  sat- 
isfactory correlation  of  central  and  local  jurisdiction 
and  administration. 

After  some  interruption  late  in  Edward  II. 's  reign, 
conservators  of  the  peace  were  again  appointed  in 
1327;  and  in  1328  is  the  first  indication  of  their  exer- 
cising a  real  judging  function.  But,  for  some  time 
after  that,  judging  was  not  their  ordinary  work;  they 
were  still  "little  more  than  constables  on  a  large 
scale."  In  1330,  some  of  their  duties  were  defined 
13 


194        Period  of  Constitution  Making 

and  enlarged  and  their  relations  to  the  justices  of 
assize  made  clear.  After  speaking  of  the  justices  of 
assize,  the  statute  continues: 

.  .  .  also  there  shall  be  assigned  good  and  lawful  men 
in  every  county  to  keep  the  peace;  and  in  the  said  assign- 
ments, mention  shall  be  made  that  such  as  shall  be  indicted 
or  taken  by  the  said  keepers  of  the  peace,  shall  not  be  let 
to  mainprise  [bail]  by  the  sheriffs,  nor  by  none  other 
ministers,  if  they  be  not  mainpernable  by  the  law;  nor 
that  such  as  shall  be  indicted,  shall  not  be  delivered  but  at 
the  common  law  .  .  .  and  that  the  said  keepers  shall 
send  their  indictments  before  the  justices,  and  they  shall 
have  power  to  enquire  of  sheriffs,  jailers,  and  others,  in 
whose  ward  such  indicted  persons  shall  be,  if  they  make 
deliverance,  or  let  to  mainprise  any  so  indicted,  which 
be  not  mainpernable,  and  to  punish  the  said  sheriffs, 
jailers,  and  others  if  they  do  anything  against  this  act.1 

It  is  easy  to  see  how  such  an  official  would  cut  into 
the  parallel  work  of  the  sheriff's  tourn,  weakened  as  this 
court  already  was.  From  this  time,  this  last  judicial 
stronghold  of  the  sheriff  steadily  declined  until  its 
practical  extinction  in  the  reign  of  Edward  IV.  It 
was  in  1361  that  the  judicial  work  of  the  keepers  of  the 
peace  was  made  regular  and  important,  and  in  the 
same  year  they  were  first  called  justices  of  the  peace. 
An  act  of  that  year  granted  them  the  power  to  "  hear 
and  determine  at  the  king's  suit  all  manner  of  felonies 
and  trespasses  done  in  the  same  county  according  to 
the  laws  and  customs  aforesaid";  and  there  was  added 
significantly:  "And  the  king  will,  that  all  general  in- 
quiries before  this  time  granted  within  any  seignories, 
for  the  mischiefs  and  oppressions  which  have  been 
>  A.  and  S.,  p.  101. 


The  Judiciary  195 

done  to  the  people  by  such  inquiries,  shall  cease  utterly 
and  be  repealed.  "  1  From  this  time  till  the  end  of  the 
middle  ages,  there  was  no  crime  except  treason  that 
could  not  be  tried  before  the  justices  of  the  peace. 
Thus  they  and  the  justices  of  assize  were,  on  the  criminal 
side,  doing  the  same  work,  and  much  that  had  for- 
merly been  done  by  the  justices  itinerant  was  now  done 
by  these  justices  resident.2  It  was  an  anomalous  and 
awkward  situation,  and  not  until  after  the  Tudor 
period  was  a  serious  attempt  made  to  clearly  dis- 
tinguish between  the  two  jurisdictions. 

As  the  new  local  courts  encroached  upon  the  tourn's 
business  of  indicting  and  holding  preliminary  hear- 
ings, the  sheriffs  became  more  and  more  solicitous 
about  their  declining  jurisdiction  and  the  profits  which 
accrued  from  it.  They  were  tempted  to  many  abuses, 
especially  the  entertaining  of  accusations  made  for 
purposes  of  extortion.  There  was  an  increasing  outcry 
against  these  misdeeds  during  the  fifteenth  century, 
and  in  the  first  year  of  Edward  IV.  an  act  was  passed 
to  the  effect  that  in  the  future  "the  above  persons" 
(sheriffs  and  their  various  deputies)  "should  not  have 
power  to  arrest  anyone,  or  levy  fines  by  colour  of  in- 
dictments so  taken ;  but  they  should  deliver  all  such 
indictments  to  the  justices  of  the  peace  at  their  next 

1  A.  and  S.,  pp.  127,  128. 

2  This  parallelism  of  jurisdiction  and  the  early  popularity  of  the 
justices  of  the  peace  are  illustrated  in  the  petition  of  the  commons, 
in  the  oppressive  and  troublous  early  reign  of  Richard  II.,  "that 
during  the  war  justices  in  eyre  and  of  trailbaston  shall  not  go  on 
circuit  among  the  said  poor  commons,  but  that  the  justices  of  the 
peace  hold  their  courts  according  to  the  tenure  of  their  commission." 
— A.  and  S.,  p.    143.     Justices  of  trailbaston  were  circuit  justices 
specially  commissioned  to  deal  with  the  organised  bands  of  lawless 
followers  and  desperadoes  known  by  that  name. 


196        Period  of  Constitution  Making 

sessions  of  the  peace,  under  the  penalty  of  forty 
pounds. " i  On  the  face  of  it,  this  would  seem  to  take 
away  from  the  tourn  everything  except  view  of  frank- 
pledge,  but  in  after  years  much  uncertainty  arose  as 
to  just  what  it  had  been  the  intention  to  include  in 
this  restriction.  It  was  finally  interpreted  as  applying 
to  felonies  and  all  the  more  serious  crimes,  also  to  new 
matter  made  punishable  or  actionable  by  statute.  In 
this  crippled  condition,  the  tourn  survived  the  middle 
ages,  and  the  sheriff,  who  had  been  a  dangerous  local 
power  for  four  centuries  and  against  whom  a  long 
line  of  strong  kings  had  waged  relentless  war,  was 
fast  becoming  a  minor  executive  officer  in  the  county. 
The  justices  of  the  peace,  as  judges  acting  under 
royal  commission,  of  course  used  the  jury  procedure 
of  the  older  royal  courts;  but  they  had  to  deal  with 
many  petty  offences  which  demanded  a  more  sum- 
mary process.  The  variety  of  their  work  led  to  a 
differentiation  in  the  business  and  names  of  their 
sessions  of  court.  VA  single  justice  exercised  many 
police  functions  and  was  empowered  by  statute  to 
deal  with  a  small  number  of  petty  offences.  His 
principal  business  was  to  conduct  preliminary  hearings. 
Two  or  more  justices  could  act' together  in  what  came 
to  be  known  as  Petty  Sessions;  they  sat  usually,  but 
not  necessarily,  at  an  accustomed  time  and  place  and 
for  a  definite  part  of  the  county,  often  the  hundred. 
They  dealt  with  many  cases  summarily  and  with  some 
that  required  jury  trial.  The  chief  court  held  by 
justices  of  the  peace  was,  from  the  fourteenth  century, 
and  is  still,  known  as  Quarter  Sessions.  It  was,  in 
theory,  made  up  of  all  the  justices  of  the  county  I 

'  Reeves,  History  of  tlie  English  Law  ii.,  10. 


The  Judiciary  197 

but  all  seldom  attended,  even  in  the  early  days  when 
there  were  few  justices  to  the  county.  It  finally 
became  established  that  two  might  constitute  a  legal 
session.  The  origin  of  Quarter  Sessions  was  in  an 
act  of  1362  "that  in  the  commissions  of  justices  of 
the  peace,  and  of  labourers, *  express  mention  be  made, 
that  the  same  justices  make  their  sessions  four  times 
by  the  year,  that  is  to  say,  one  session  within  the 
utas  of  Epiphany,  the  second  within  the  second  week 
of  Mid-Lent,  the  third  betwixt  the  feasts  of  Pentecost 
and  Saint  John  Baptist,  the  fourth  within  the  eight 
days  of  Saint  Michael."2  This  court  tried  the  great 
criminal  cases  that  were  outside  the  competence  of 
the  Petty  Sessions,  and  also  heard  appeals  from  that 
court  and  from  the  court  held  by  a  single  justice. 

In  studying  his  origin,  it  has  been  seen  that  the 
justice  of  the  peace,  or  keeper  of  the  peace  as  he  was 
first  called,  was  a  police  officer,  a  sort  of  head-constable, 
before  he  became  a  judge;  this  earlier  character  he 
never  entirely  lost.  Another  set  of  functions,  the 
administrative,  of  which-  he  had  never  been  wholly 
devoid,  became  very  important  toward  the  end  of 
the  fourteenth  century.  Much  effort  was  expended 
in  futile  attempts  to  enforce  the  labour  legislation  of 
that  century;  the  justice  became  the  chief  medium 
of  communication  between  the  king  and  the  localities, 

1  These  were  justices  given  a  special  commission  to  enforce  the 
statutes  of  labourers  of  1349  and  1351   (A.  and  S.,  pp.  114—117). 
They  might  or  might  not  be  identical  with  the  justices  of  the  peace. 
After  1368,  no  separate  commission  for  enforcing  the  labour  statutes 
was  issued;    that  function  was  included  in  the  commission  of  the 
justices  of  the  peace.      See   Miss  B.    H.  Putnam,    The  Justices  of 
Labourers  in  the  Fourteenth  Century.      English  Historical  Review 
xxi.,   517-538- 

2  A.  and  S.,  p.  129. 


198        Period  of  Constitution  Making 

all  minor  officials  were  made  answerable  to  him,  and 
Quarter  Sessions  became  a  veritable  governing  body 
for  the  shire. 

Until  1439,  there  was  no  legislation  which  bore 
directly  upon  the  qualifications  for  this  office.  Knights 
had  been  usually  appointed ;  but  there  is  evidence  that 
men  of  smaller  substance  were  occasionally  justices, 
for  the  abuse  of  the  office  for  purposes  of  extortion 
became  serious  enough  to  be  taken  account  of  by  the 
government.  An  act  of  1439  contained  this  clause: 
"the  king  willing  against  such  inconveniences  to 
provide  remedy  hath  ordained  and  established,  by 
authority  aforesaid,  that  no  justice  of  peace  within 
the  realm  of  England,  in  any  county,  shall  be  assigned 
or  deputed,  if  he  have  not  lands  and  tenements  to  the 
value  of  xx  pounds  by  year."1  This  annual  value 
was  the  old  measure  of  the  knight's  fee.  This  in- 
augurated the  policy  of  identifying  the  new  office  with 
a  class  of  men  above  bribery  and  of  consideration  and 
authority  in  their  neighbourhoods.  In  modern  times, 
the  office  has  become  purely-  honorary ;  but  from  the 
reign  of  Richard  II.  until  after  the  close  of  the  middle 
ages,  a  fee  of  four  shillings  a  day  was  allowed  the 
justices.  The  number  of  justices  for  each  county  was 
limited  by  statute  in  1388.  This  limitation  was  not 
strictly  regarded,  however,  and  the  number  became 
variable  with  a  general  tendency  to  increase.2 

« A.  and  S.,  p.  194. 

» "  Towards  the  close  of  Elizabeth's  reign  no  less  than  fifty- 
five  are  enumerated  in  Devonshire  alone.  The  smallest  coun- 
ties now  contain  many  more  than  six;  while  the  most  numerous 
magistracy — that  of  Lancashire — reaches  to  more  than  800. 
The  whole  number  must  be  little  short  of  20,000;  but  considera- 
bly less  than  half  of  these  are  'active'  justices  who  have  taken 
the  requisite  oaths  and  received  from  Chancery  the  necessary 


The  Judiciary  199 

Thus  by  the  middle  of  the  fifteenth  century,  Eng- 
land's local,  aristocratic  system  of  government  had 
been  created,  and  most  of  the  features  which  con- 
ditioned its  success  and  fame  in  modern  times  were 
clearly  discernible.  No  such  system  was  possible 
outside  of  England,  for  no  other  country  in  Europe 
possessed  that  peculiar  middle  class  of  country  gentry 
out  of  which  it  was  made.  It  might  seem  that  the 
king's  depriving  the  sheriffs  of  local  power  and  be- 
stowing it  in  augmented  form  upon  the  justices  of  the 
peace,  was  merely  breaking  down  one  feudalising  and 
disintegrating  element  in  order  to  set  up  another. 
But  the  gentry  possessed  just  the  degree  of  approach 
to  the  class  below  and  of  distinction  from  the  higher 
nobility  to  be  a  perfect  instrument  for  this  local  work. 
Knights  were  too  self-respecting  and  substantial  to 
become  petty  eye-servants,  too  small  to  make  any 
setting  up  of  local  authority  upon  their  own  private 
account  seem  attainable.  "It  is  such  a  form  of  sub- 
ordinate government  for  the  tranquillity  of  the  realm 
as  no  part  of  the  Christian  world  hath  the  like,  if  the 
same  be  duly  exercised."1 

writ     of     power." — Medley,   English    Constitutional    History,    p. 

395- 

1  Cited  from  Coke's  Fourth  Institute,  p.  170,  in  Maitland's  Justice 
and  Police,  p.  93.  Chapter  viii.  of  the  latter  work  is  the  best  brief 
account  of  the  county  magistracy  as  it  exists  to-day.  Jenks  com- 
ments upon  the  uniqueness  of  England's  local  government  in  his 
Law  and  Politics  in  the  Middle  Ages,  pp.  182-184:  "The  com- 
parative success  of  England  in  the  matter  of  local  government  has 
given  her  a  unique  place  among  Teutonic  countries,  if  we  except, 
perhaps,  Scandinavia.  With  this  possible  exception,  England, 
and  England  alone,  has  succeeded  in  reconciling  the  absolute 
supremacy  of  the  State  with  the  existence  of  local  independence. 
While  the  State  in  France  became  a  rapacious  bureaucracy, 
tempered  only  by  municipal  and  feudal  disintegration;  while 


200        Period  of  Constitution  Making 

3.  The  Later  Judicial  History  of  the  Curia  Regis, 
Especially  the  Origin  and  Early  History  of  the  Court 
of  Chancery. — When  that  fertile  parent  stem,  the  Curia 
Regis,  had  put  forth  such  mighty  judicial  branches 
as  the  common -law  courts  and  the  itinerant  justice 
system, 1  it  had  not  drained  itself  of  judicial  power  or 
exhausted  its  ability  to  create.  It  has  been  shown 
how,  in  the  reign  of  Henry  I.,  there  were  two  regular 
manifestations  of  the  Curia  Regis:  the  fuller  meeting 
of  tenants-in-chief,  summoned  at  the  three  great 
yearly  festivals  and  at  other  times  as  occasion  re- 

the  State  in  Germany  died  of  inanition,  and  gave  place  to  a 
crowd  of  absolute  principalities,  whose  rulers  treated  their  sub- 
jects as  food  for  the  cannon,  or  as  milch  kine  for  the  supply  o' 
taxes;  the  State  in  England  developed  into  a  strong  unity,  whose 
elements  yet  maintained  that  vivid  consciousness  of  local  life 
which  is  essential  to  the  existence  of  a  free  and  self-respecting 
nation.  The  State  in  England  has  not  ruled  through  feudal 
proprietors;  therefore  there  have  been  no  hereditary  local  despots 
who  have  defied  her  mandates.  She  has  not  destroyed  the  old 
landmarks;  therefore  her  subjects  have  not  felt  themselves  to  be 
helpless  atoms  under  the  heel  of  a  bureaucracy.  Her  officials 
have  not  been  a  privileged  caste  of  adventurers,  speculating  in 
their  offices,  and  exempt  from  the  ordinary  rules  of  law;  therefore 
they  have  respected  the  rights  of  the  citizen,  and  are  by  him  re- 
garded neither  with  jealousy  nor  with  fear.  The  State  has  boldly 
used  the  local  units  as  the  basis  of  its  own  organisation.  ...  In 
England  the  State  has  fearlessly  left  to  local  control  much  that 
a  timid  State  keeps  in  its  own  hands — police,  road-making,  sani- 
tation, education.  The  result  of  the  whole  policy  has  been  to 
foster,  if  not  to  produce,  some  of  the  best  features  of  the  English- 
man's political  character :  his  deep  respect  for  law,  his  independence 
in  the  face  of  authority,  his  self-reliance,  his  practical  good  sense, 
his  willingness  to  compromise,  his  sincere  though  silent  patriotism." 
The  lack  in  continental  countries  of  almost  everything  which 
characterises  England's  local  system  has  led  many  continental 
writers  to  pick  out  the  local  magistracy  as  the  most  distinctive 
and  valuable  feature  of  the  English  constitution. 
'See  Part  III.,  §  I.,  i. 


The  Judiciary  201 

quired,  and  the  small  body  of  officials  and  barons  in 
attendance  on  the  king,  which  the  increasing  business 
of  the  central  government  kept  quite  continuously  in 
session.1  The  larger  body,  after  the  regular  dropping 
out  of  the  minor  barons  and  a  partial  change  in  the 
basis  of  attendance,  was,  in  the  early  fourteenth 
century,  the  embryonic  House  of  Lords  2 ;  while  what 
there  was  left  of  the  smaller  body,  after  it  had  thrown 
off  the  court  system,  was  the  early  Council.3  But  in 
both  of  these,  there  remained  much  of  the  undifferen- 
tiated  power  that  is  characteristic  of  primitive  govern- 
ment; in  conjunction  with  the  king,  either  might 
exercise  what  would  now  be  distinguished  as  executive, 
legislative,  or  judicial  functions.  And  even  at  the 
date  named,  any  conscious  distinction  between  the  two 
bodies  themselves  must  have  been  slight.  One  could 
quite  imperceptibly  become  the  other.  The  smaller 
had,  perhaps,  a  more  official  character — certainly 
there  was  a  large  body  of  officials — but  it  was  attended 
by  such  of  the  prelates  and  barons  as  the  king  wished 
at  his  court,  and,  by  a  quite  arbitrary  summons  of 
more  prelates  and  barons,  it  might  become  the  larger 
body.  While  the  bulk  of  judicial  business  had,  of 
course,  gone  to  the  court  system,  these  original  bodies 
still  retained  the  power  to  deal  at  first  instance  with 
any  case,  criminal  or  civil,  which  the  king  cared  to 
bring  before  them.  They  entertained  many  cases  of 
a  special  character,  and  had,  as  was  natural,  a  kind 
of  supervisory  jurisdiction  over  the  ordinary  courts. 

While  finally  ceasing  to  be  an  administrative  body, 
the  House  of  Lords  carried  over  from  its  earlier  history, 
and  has  always  retained,  certain  judicial  functions. 

1  See  above,  pp.  102,  103,  125.  2  See  below,  pp.  299-302.  } Ibid., 
pp.  285-290. 


202        Period  of  Constitution  Making 

When  it  was  the  king's  feudal  court,  the  king's  vassals 
were  judged  in  it  by  their  fellow- vassals,  their  peers; 
in  it,  as  in  any  feudal  court,  was  judgment  of  peers 
(judicium  parium).  In  the  House  of  Lords,  any 
English  peer  has  the  right  to  be  judged,  in  capital 
crimes,  by  his  fellow  peers.  In  the  procedure,  known 
as  impeachment,  which  developed  late  in  the  four- 
teenth century,  the  House  of  Lords  judges  and  the 
House  of  Commons  prosecutes.1  And  in  the  same 
century  it  was  established  that  the  House  of  Lords 
was  to  be  the  highest  court  of  appeal  for  all  England. 
This  it  has  continued  to  be  except  in  a  few  classes  of 
civil  cases  which  are  appealed  to  the  Council. 

When  the  House  of  Lords  was  engaged  in  this 
judicial  work,  it  was  known  by  the  technical  and 
curious  name  of  "king  in  parliament" — curious,  be- 
cause it  perpetuated  an  idea  derived  from  the  primitive 
relation  of  king  and  Curia  Regis,  long  antedating  any- 
thing that  could  be  properly  called  Parliament.2 
But  there  was  also  a  tribunal  called  "  king  in  council, " 
and  this  was  the  Council,  the  descendant  of  the  smaller 
Curia  Regis,  acting  in  its  judicial  capacity. 3  We  have 

•  See  below  pp.  376,  377.     For  a  description  of  the  modern,  cen- 
tral judicial  system,  see  Maitland,  Justice  and  Police,  chs.  v.  and  vi. 

J  On  the  earliest  use  in  England  of  the  word  parliament,  see 
below,  pp.  320,  321. 

*  Speaking  of  "the  king  in  parliament"  and  "the  king  in  coun- 
cil," Maitland  says:  "And  the  two  are  not  so  distinct  as  an  his- 
torian, for  his  own  sake  and  his  readers',  might  wish  them  to  be 
On  the  one  hand  those  of  the  king's  council  who  are  not  peers  of 
the  realm,  in  particular  the  judges  and  the  masters  of  the  chancery, 
are  summoned  to  the  lords'  house  of   parliament,  and  only  by 
slow  degrees  is  it  made  plain  to  them  that,  when  they  are  in  that 
house,  they  are  mere  'assistants'  of  the  peers  and  are  only  to  speak 
when  spoken  to.     On  the  other  hand  there  is  a  widespread,  if  not 
very  practical,  belief  that  all  the  peers  are  by  rights  the  king's 


The  Judiciary  203 

seen  that  both  bodies  might,  at  the  beginning  of  the 
fourteenth  century,  entertain  any  civil  or  criminal  case. 
While  the  larger,  which  was  becoming  the  House  of 
Lords,  specialised  its  judicial  activity  along  the  lines 
just  mentioned,  the  smaller,  the  future  Council,  re- 
tained the  earlier  and  broader  competence.  During 
the  fourteenth  and  fifteenth  centuries,  there  developed 
from  it,  in  both  the  criminal  and  civil  fields,  something 
of  great  importance  in  English  judicial  history. 

The  criminal  side  can  be  dealt  with  briefly.  The 
late  fourteenth  and  the  fifteenth  centuries  were,  for 
England,  a  time  of  degeneration  and  lawlessness  among 
the  nobility.  Starting  in  the  factional  strifes  and 
personal  hatreds  of  Edward  II. 's  time,  the  lawless 
tendencies  were  stimulated  by  the  endless  foreign 
war.  It  was  the  time  of  livery  and  maintenance. 
In  suits  to  which  the  great  and  powerful  were  parties, 
juries  were  so  bribed  or  intimidated  that  a  fair  trial 
in  the  ordinary  courts  was  exceptional.  Just  when 
Englishmen  first  began  to  realise  what  a  valuable  and 
unique  thing  the  jury  was,  it  was  being  proved  a 
failure  in  a  certain  class  of  cases.  It  had  become 
established  that  cases  involving  capital  punishment 
could  only  be  tried  by  a  jury,  but  there  was  still  a  very 
useful  sphere  of  activity  for  a  court  not  bound  by 
established  rules  of  procedure  and  which  could  not 
be  bribed  or  intimidated.  The  Council  became  such 
a  court  acting  on  its  own  original  judicial  authority 
and  on  several  statutes  of  the  Lancastrian  period 
which  specially  empowered  it  to  deal  with  certain  cases. 
It  exercised  a  sort  of  supplementary  criminal  juris- 

councillors,  and  that  any  one  of  them  may  sit  at  the  council  board 
if  he  pleases.  " — Traill,  Social  England  ii.,  483. 


204        Period  of  Constitution  Making 

diction,  and  punished  severely  by  fine  or  imprison- 
ment. Rioting,  conspiracy,  and  bribery  furnished  it 
much  work;  and  of  special  importance  was  its  activity 
in  bringing  perjured  jurors  to  justice.  Here  was  a 
method  of  preventing  the  complete  degeneration  of 
the  criminal  jury;  when  the  juror  accepted  a  bribe 
or  yielded  to  fear,  he  knew  that  he  might  be  severely 
dealt  with  for  it.  The  way  of  the  fifteenth-century 
juror  was  hard,  the  local  terror  on  one  side  and  fine 
or  imprisonment  at  the  hands  of  the  Council  on  the 
other.  The  procedure  of  the  Council  was  summary, 
and,  in  other  respects,  in  sharp  contrast  to  that  of  the 
common-law  courts.  It  has  been  described  as  doing 
justice  in  an  "administrative  way."  It  utilised  many 
of  the  methods  of  the  canon  law.  It  took  short  cuts 
to  justice,  and  exercised  what  may  be  termed  a  criminal 
equity. 1  It  is  evident  that  the  Council  in  this  capacity 
might  easily  be  a  blessing  or  a  menace  to  the  nation ; 
much  depended  upon  the  character  of  its  members, 
more  upon  the  character  of  the  king  and  whether  the 
king  controlled  it  or  was  controlled  by  it.  Its  value 
was  very  great  throughout  the  middle  ages  and  during 
parts  of  the  Tudor  period.  Naturally  the  common - 
law  judges  were  jealous  of  it  and  there  was  much  agi- 
tation against  it  in  Parliament;  but  agitation  was  in 
vain  while  this  criminal  justice  was  exercised  moderately 
and  well.2 

1  "It  sends  for  the  accused;  it  compels  him  to  answer  upon  oath 
written  interrogatories.     Affidavits,  as  we  should  call  them,  are 
sworn  upon  both  sides.     With  written  depositions  before  them  the 
lords  of  the  council,  without  any  jury,  acquit  or  convict.     The 
extraction  of  confessions  by  torture  is  no  unheard  of    thing." — 
Maitland  in  Traill's  Social  England  ii.,  484. 

2  In  later  history,  the  Council  acting  judicially  was  known  as  the 


The  Judiciary  205 

The  civil  jurisdiction  of  the  Council,  like  its  criminal 
jurisdiction  and  the  appellate  jurisdiction  of  the  House 
of  Lords,  had  its  root  in  the  idea  that  the  king  was  the 
source  of  law,  and  in  his  administration  of  the  law 
through  his  Curia.  The  Curia  Regis  gave  birth  to 
special  courts,  but  they  were  all  king's  courts.  The 
king  was  less  closely  identified  with  them,  however, 
than  with  their  parent,  his  Council,  and  there  were 
no  definite  boundaries  to  the  judicial  powers  remaining 
in  it.  Such  boundaries  would  have  been  paradoxical, 
for  the  king  was  the  source  of  law  and  the  Council 
was  the  king  in  action.  As  such,  it  could  exercise  a 
concurrent,  a  supervisory,  or  a  supplementary  juris- 
diction. We  are  next  to  examine  the  conditions  in  the 
fourteenth  century  which  made  it  necessary  for  the 
Council  to  develop  a  new  line  of  activity  in  civil  cases. 

Court  of  Star  Chamber,  and  this  name  was  of  ancient  origin:  in 
Westminster,  "a  new  pile  of  buildings,  between  the  great  hall  and 
the  palace,  and  next  to  the  exchequer  receipt,  was  begun  at  least 
as  early  as  1346.  ...  It  was  expressly  appointed  for  the  use 
of  the  council,  and  was  henceforth  so  used.  It  was  called  the 
'star  chamber'  from  the  first,  though  it  was  quite  as  often  referred 
to  as  '  the  council  chamber  next  to  the  receipt  of  the  exchequer. '  " — 
J.  F.  Baldwin,  Antiquities  of  the  King's  Council,  English  Histori- 
cal Review  xxi.,  16.  Under  the  Stuarts,  all  the  evil  possibili- 
ties of  the  court  were  realised;  controlled  by  a  despotic  sov- 
ereign, it  invaded  the  liberty  of  the  subject  and  did  the  exact 
opposite  of  its  earlier  service  of  protecting  the  people  against 
oppression.  Consequently  the  Long  Parliament,  in  1641,  so 
regulated  the  Council's  judicial  capacity  as  to  abolish  this  court. 
The  idea,  which  obtained  at  this  time,  that  the  Star  Chamber 
Court  originated  in  the  statute  of  Henry  VII.  (1487),  which  placed 
this  criminal  jurisdiction  in  the  hands  of  certain  specified  men — • 
most  of  them  councillors — and  which,  for  a  time,  practically  took 
this  work  from  the  Council  as  a  whole,  was  without  historical 
foundation.  See  further  J.  S.  Leadam,  Select  Cases  in  the  Star 
Chamber,  pp.  ix-lxxi.  (Selden  Society,  vol.  xvi.) 


206        Period  of  Constitution  Making 

The  system  of  writs,  by  which  the  common-law 
courts  gained  their  civil  justice  and  which  laid  the 
foundation  of  the  common  law  itself,  has  been  de- 
scribed; as  also  the  rapidity  with  which  new  writs 
were  created  and  the  general  adaptability  of  the  new 
civil  jurisdiction.1  This  condition  lasted  till  about 
the  middle  of  the  thirteenth  century.  From  that 
time,  new  forces  began  to  limit  the  creation  of  writs; 
that  is,  they  limited  the  creation  of  new  actions,  and 
hence  tended  to  fix  and  stereotype  the  common  law. 
The  writ-making  power  had  been  in  the  hands  of  the 
Chancellor,  always  a  learned  ecclesiastic  of  the  king's 
Council.  In  his  increasing  business,  he  had  gathered 
around  him  a  staff  of  assistants,  known  as  Masters, 
who  were  also  ecclesiastics,  and,  like  the  Chancellor, 
learned  in  the  Roman  law.  The  first  important  ob- 
jection to  the  issuing  of  new  writs  was  when  Henry 
III.  made  his  unfortunate  attempt  to  rule  without 
ministers  and  writs  were  being  issued  without  a  Chan- 
cellor in  an  irresponsible  and  unusual  way.  The 
common-law  courts  had  become  established  with 
their  benches  of  judges.  These  judges  were  not 
always  ecclesiastics,  asjormerly;  and  there  had  grad- 
ually formed  a  body  of  men,  who  might  not  very 
improperly  be  termed  professional  lawyers.  There 
was  already  a  body  of  law  and  a  procedure  that,  in  the 
eyes  of  such  men,  could  not  lightly  be  modified,  and 
precedent  was  becoming  very  important  in  the  ad- 
ministration of  justice.  The  objection  soon  went 
beyond  the  matter  of  the  irregular  issue  of  writs :  the 
Chancellor,  on  his  sole  authority,  must  not  make  new 
writs.  To  make  new  writs  was  to  make  new  law, 

'See  above,  pp.  138-140. 


The  Judiciary  207 

and  the  idea  was  growing  that  the  law  was  nearly 
complete.  By  the  Provisions  of  Oxford,  1258,  the 
Chancellor  was  to  swear  "that  he  will  seal  no  writ,  ex- 
cepting writs  of  course,  without  the  commandment  of 
the  king  and  of  his  council  who  shall  be  present. "  * 
Moreover  the  judges  took  it  upon  themselves  to  decide 
whether  writs  issued  by  the  Chancellor  were  inno- 
vations or  not;  they  did  this  by  refusing,  if  they 
saw  fit,  to  allow  the  use  of  such  novel  writs  in  the 
actions  for  which  they  were  issued.  This  was  such 
an  arbitrary  and  mischievous  checking  of  the  law's 
natural  growth  that  a  sort  of  compromise  was  at- 
tempted in  1285  in  the  Statutes  of  Westminster,  the 
Second : 

And  whensoever  from  henceforth  it  shall  fortune  in 
the  chancery,  that  in  one  case  a  writ  is  found,  and  in  like 
case  falling  under  the  law,  and  requiring  like  remedy,  is 
found  none,  the  clerks  of  the  chancery  shall  agree  in  making 
the  writ,  or  shall  adjourn  the  plaintiffs  until  the  next 
parliament  and  write  the  cases  in  which  they  cannot 
agree,  and  refer  them  to  the  next  parliament,  and  by 
consent  of  men  learned  in  the  law,  a  writ  shall  be  made, 
lest  it  might  happen  hereafter  that  the  court  should  long 
time  fail  to  minister  justice  unto  complainants. 2 

But  even  this  slight  power  to  innovate,  merely 
creating  writs  for  actions  which  were  similar  to  those 
already  having  writs  of  course,  was  opposed  by  the 
judges  and  soon  became  inoperative.  "  Henceforth 
the  common  law  was  dammed  and  forced  to  flow  in 
unnatural  artificial  channels.  Thus  was  closed  the 
cycle  of  original  writs,  the  catalogue  of  forms  of 

«  A.  and  S.,  p.  58.  J  A.  and  S.,  p.  76. 


208        Period  of  Constitution  Making 

action    to   which    nought    but    Statute    could    mal:3 
addition."1 

The  mention,  in  the  Statute  of  Westminster,  of 
Parliament  as  a  place  of  legislative  authority  and 
the  use  of  the  word  statute  suggest  that  Parliament 
was  about  to  solve  the  difficulty  by  making  new  laws 
for  new  cases.  But  there  was  no  Parliament  in  1285 
in  the  sense  in  which  the  word  is  now  understood. 
In  this  act,  it  probably  meant  nothing  more  than 
the  king's  Council.  But  there  was  a  Parliament 
with  a  recognised  statute-making  power  by  the  middle 
of  the  fourteenth  century,  and  the  principle  was  being 
asserted  that  no  new  law  of  a  permanent  character 
could  emanate  from  any  other  source.  Had  Parlia- 
ment then  proceeded  to  legislate  in  a  copious  and 
intelligent  manner,  the  need  felt  at  that  time  would 
have  been  met  in  substantially  the  same  way  as  at 
present.  But  this  early  Parliament  played  a  dog- 
in-the-manger  part.  It  stoutly  opposed  the  making 
of  new  writs,  but  did  not  itself  produce  their  equiva- 
lent. After  an  extraordinary  outburst  of  legislation 
under  Edward  L,  when  Parliament,  if  we  may  speak 
of  one  at  all,  was  in  its  primordial  fragments,  there 
ceased,  with  a  few  noteworthy  exceptions  in  the  four- 
teenth century,  to  be  any  important  law-making 
until  the  Tudor  period.2  This  brings  the  situation 

'  Maitland,  Bracton's  Note  Book,  cited  in  Medley,  English  Con- 
stitutional History,  p.  352. 

2  "  Parliament  seems  to  have  abandoned  the  idea  of  controlling 
the  development  of  the  common  law.  Occasionally  and  spas- 
modically it  would  interfere,  devise  some  new  remedy,  fill  a  gap 
in  the  register  of  writs,  or  circumvent  the  circumventors  of  a 
statute.  But  in  general  it  left  the  ordinary  law  of  the  land  to  the 
judges  and  the  lawyers.  In  its  eyes  the  common  law  was  com- 
plete or  very  nearly  complete.  And  then  as  we  read  the  statute- 


The  Judiciary  209 

squarely  before  us.  Where  are  the  new  cases  to  go 
that  the  ' '  dammed-up "  common  law  and  its  courts 
did  not  provide  for? 

It  cannot  be  denied  that,  as  time  passed,  a  good 
many  small  leaks  began  to  show  in  the  dam.  While 
fearfully  afraid  of  avowed  innovation  in  the  law,  the 
common-law  judges  were  not  unmindful  of  changed 
conditions  or  of  the  value  of  gaining  new  kinds  of 
cases.  But  they  must  be  gained  through  such  juggling 
with  the  old  law  as  would  make  it  appear  that  there 
was  nothing  new. 1  There  was  much,  however,  for 
which  the  common  law  did  not  provide,  or  for  which 
it  provided  inadequately.  Plaintiffs  began  to  seek 
relief,  in  such  matters,  at  the  higher  and  more  ancient 
tribunal  from  which  the  common-law  courts  them- 
selves had  sprung,  the  king  in  his  Council.  There 
might  be  grounds  for  this  action  other  than  the  in- 
adequacy of  the  common  law  to  cover  their  cases: 
they  were  poor  and  unable  to  bear  the  expense  of 
ordinary  litigation,  or  their  poverty  rendered  the  law's 
delay  disastrous;  they  were  labouring  under  some 
local  prejudice  and  distrusted  jury  trial,  or  they  were 

roll  of  the  fifteenth  century  we  seem  for  a  while  to  be  watching 
the  decline  and  fall  of  a  mighty  institution.  Parliament  seems 
to  have  nothing  better  to  do  than  to  regulate  the  manufacture 
of  cloth." — Maitland  in  Traill's  Social  England  ii.,  477. 

1  "  In  the  fifteenth  century  there  were  great  judges  who  performed 
what  may  seem  to  us  some  daring  feats  in  the  accomodation  of 
law  to  new  times.  Out  of  unpromising  elements  they  developed 
a  comprehensive  law  of  contract ;  they  loosened  the  bonds  of  those 
family  settlements  by  which  land  had  been  tied  up ;  they  converted 
the  precarious  villein  tenure  of  the  middle  ages  into  the  secure 
copyhold  tenure  of  modern  times.  But  all  this  had  to  be  done 
evasively  and  by  means  of  circumventive  fictions.  Novel  prin- 
ciples could  not  be  admitted  until  they  were  disguised  in  some 
antique  garb.  " — Ibid.,  480. 
14 


210        Period  of  Constitution  Making 

contending  with  a  wealthy  and  powerful  lord  who 
could  buy  or  intimidate  the  jury  and  to  whom  delay 
was  indifferent.  On  the  same  plenary  conception  of 
his  judicial  power,  which  authorised  the  king  to  pardon 
the  criminal  condemned  by  the  common -law  courts, 
he  could  entertain  in  his  Council  the  cases  of  these 
poor  petitioners.1  Thus,  in  the  fourteenth  century, 
the  Council  exercised  more  and  more,  what  it  had 
never  fully  ceased  to  exercise,  a  justice  concurrent 
with,  and  supplementary  to,  that  of  the  common-law 
courts. 

But  the  Council  was  a  large,  inchoate  body,  and  if 
this  line  of  activity  were  to  increase  and  become 
regular,  some  specialisation  must  take  place  within 
it.  The  king  could  not  attend  to  it  personally,  and 
the  whole  Council  could  not.  For  two  main  reasons, 
the  Chancellor  was  the  member  of  the  Council  to  whom 
it  was  increasingly  intrusted.  He  had  become  the 
king's  chief  minister  by  the  end  of  the  thirteenth 
century,  and  presided  over  the  Council  in  the  king's 
absence.2  If  petitions  were  not  brought  directly  to 
the  king,  they  naturally  went  to  the  man  who  most 

«  "Odd  though  this  may  seem  to  us,  that  court  which  was  to 
become  a  byword  for  costly  delay  started  business  as  an  expeditious 
and  a  poor  man's  court. " — Maitland  in  Train's  Social  England 
ii.,  486. 

2  The  Chancellor  was  taking  the  place  of  the  Justiciar,  who,  from 
the  Norman  Conquest,  had  been  the  greatest  official  and  had 
represented  the  king  in  the  latter's  frequent  and  long  absences  on 
the  continent.  "  The  Chancellor  first  appears  in  England  under 
Edward  the  Confessor.  He  was  the  chief  secretary,  head  of  the 
king's  chaplains,  and  keeper  of  the  royal  seal.  The  name  was 
derived  from  the  cancelli  or  screen  behind  which  he  worked.  Ow- 
ing to  the  literary  qualifications  of  the  office,  in  the  early  days  it 
was  always  in  the  hands  of  an  ecclesiastic  " — Medley,  English 
Constitutional  History,  pp.  378,  379. 


The  Judiciary  211 

regularly  represented  him.  And  the  Chancellor  was 
a  learned  man  with  a  corps  of  learned  assistants,  who 
knew  the  civil,  that  is,  Roman,  and  canon  laws. 
The  common -law  judges  had  many  a  time  borrowed 
the  principles  of  Roman  law  in  dealing  with  new 
problems;  an  official  specially  versed  in  that  law 
could  most  appropriately  entertain  unusual  cases. 
On  general  principles,  trained  men  were  needed  to  deal 
with  civil  cases,  the  most  important  of  which  had  to 
do  with  the  increasingly  intricate  land  law.  Criminal 
cases  brought  before  the  Council,  might  be  handled 
summarily  by  the  king  and  the  whole  body;  civil 
cases  must  be  examined  in  the  Chancery.  It  may 
be  remarked  further  that  the  Chancellor  was  more 
at  leisure  than  he  had  for  long  been ;  the  writ  business 
was  declining — the  chief  reason,  as  has  been  shown, 
for  the  Council's  growing  judicial  activity. 

The  first  evidence  that  the  Council's  civil  jurisdiction 
was  being  turned  over  to  the  Chancellor  is  found  in 
an  ordinance  of  1290.  By  the  end  of  Edward  II. 's 
reign,  it  had  become  a  regular,  perhaps  the  most  im- 
portant, part  of  his  work.  Moreover,  suits  to  which 
the  king  was  a  party,  suits  which,  before  this,  the  king 
had  apportioned  quite  evenly  between  the  common - 
law  courts  and  the  Council,  he  now  preferred  to  have 
tried  before  the  Chancellor.  Nevertheless,  Chancery 
emerged  as  a  court  separate  from  the  Council  grad- 
ually, almost  imperceptibly.  For  a  long  time,  civil 
cases,  like  criminal,  were  brought  to  the  "king  in 
Council,"  and  were  heard  directly  by  him  and  his 
Council  or  were  turned  over  to  the  Council's  chief 
official  as  the  royal  convenience  or  the  nature  of 
the  individual  case  dictated.  As  time  passed,  an 


212        Period  of  Constitution  Making 

increasing  number  actually  went  to  the  Chancellor. 
But  in  either  case,  the  work  was  done  in  the  Council, 
and  no  one  was  conscious  that  anything  new  was 
being  created.  Finally  it  was  an  accomplished  fact; 
by  the  end  of  Edward  III.'s  reign,  it  could  no  longer 
escape  notice  that  out  of  the  Council  a  new  court 
had  grown,  and  men  began  to  speak  of  it  as  such.  But 
even  at  that  time,  it  was  hardly  a  separate  jurisdiction ; 
it  was  rather  a  permanent  and  recognised  judicial 
committee  of  the  Council,  constantly  drawing  its 
authority  from  that  body. 

While  Chancery  grew,  it  used  new  principles  and 
developed  a  new  procedure.  Indeed,  its  growth  de- 
pended upon  its  ability  to  do  this.  As,  at  an  earlier 
time,  the  Curia  Regis  and  its  first  offspring,  the  common- 
law  courts,  were  plastic,  and  developed  a  law  and  pro- 
cedure vastly  different  from  the  antique  formalism  of 
the  Anglo-Saxon  court  system,1  so  now  Chancery 
was  measurably  in  the  same  relation  to  these  common - 
law  courts,  now  themselves  growing  old  and  formal. 
But  history  was  not  to  repeat  itself  to  the  extent  of 
Chancery's  assimilating  or  exterminating  these  courts. 
The  common  law  was  virile,  but  needed  supplementing 
at  a  time  when  it  refused  to  grow  fast  enough  and 
was  not  being  helped  by  statute.  It  was  Chancery's 
use  of  new  principles  and  procedure  that  was  mainly 
responsible  for  its  recognition  as  a  distinct  court. 
The  procedure  seems  to  have  been  borrowed  directly 
from  the  canon  law;  it  was  the  same  as  that  of  an 
ecclesiastical  court.  "In  flagrant  contrast  to  the 
common  law,  it  forced  the  defendant  to  answer  on 
oath  the  charges  that  were  brought  against  him;  it 

>  See  above,  p.  129  and  note  2. 


The  Judiciary  213 

made  no  use  of  the  jury;  the  evidence  consisted  of 
written  affidavits."1 

On  the  other  hand,  the  Chancellors'  training  in 
Roman  and  canon  law  did  not  lead  to  a  wholesale 
borrowing  of  that  law  for  their  court,  as  has  often  been 
taken  for  granted.  They  did  not  abandon  the  common 
law  and  adopt  a  new  system.  While  they  knew  of 
the  equitable  jurisdiction  of  the  Roman  Praetor,  they 
did  not  attempt  to  adopt  the  results  of  that  jurisdiction. 
Rather,  both  Roman  Praetor  and  English  Chancellor, 
mutatis  mutandis,  acted  under  the  same  fundamental 
authority,  the  authority  of  the  sovereign  as  source 
of  law,  to  deal  with  the  law  as  occasion  required.  2 
When  Chancery  is  spoken  of  as  a  court  of  equity  or 

1  Maitland,  in  Traill's  Social  England  ii.,  488. 

2  This  principle,  as  far  as  the  nations  of  western  Europe  are  con- 
cerned, originated  in  Rome.     Of  its  ultimate  source  there  and  its 
disposition  during  the  Republic,  Sir  Henry  Maine  says:  "At  the 
crisis  of  primitive  Roman  history  which  is  marked  by  the  expulsion 
of  the  Tarquins,  a  change  occurred  which  has  its  parallel  in  the 
early  annals  of  many  ancient  states,  but  which  had  little  in  common 
with  those  passages  of  political  affairs  which  we  now  term  revo- 
lutions.    It  may  be  best  described  by  saying  that  the  monarchy 
was  put  into  commission.     The  powers  heretofore   accumulated 
in  the  hands  of  a  single  person  were  parcelled  out  among  a  number 
of  elective  functionaries,  the  very  name  of  the  kingly  office  being 
retained  and  imposed  upon  a  personage  known  subsequently  as 
the  Rex  Sacrorum  or  Rex  Sacrificulus.     As  part  of  the  change,  the 
settled  duties  of  the  supreme  judicial  office  devolved  on  the  Praetor, 
at  the  time  the  first  functionary  in  the  commonwealth,  and  together 
with  these  duties  was  transferred  the  undefined  supremacy  over 
law  and  legislation  which  always  attached  to  ancient  sovereigns, 
and  which  is  not  obscurely  related  to  the  patriarchal  and  heroic 
authority  they  had  once  enjoyed." — Ancient  Law,   pp.    61,    62. 
Since  the  Norman  Conquest,  the  English  kings  had  been  more  and 
more    putting    their    judicial    authority    into    commission.     The 
analogy  between  the  fourteenth-  and  fifteenth-century  Chancellor 
and  the  Roman  Praetor  is  in  many  respects  striking. 


Period  of  Constitution  Making 

the  Chancellor  as  exercising  an  equitable  jurisdiction, 
the  meaning  is  that,  while  the  common  law  was  used 
as  far  as  possible,  when  it  was  found  that  its  use  re- 
sulted in  what  was  not  equitable  or  in  conformity 
to  the  dictates  of  conscience,  then  it  was  modified 
or  supplemented  as  the  ends  of  natural  justice  seemed 
to  require.  In  doing  this,  the  Chancellor  might 
utilise  his  Roman  or  canonical  learning,  but  he  more 
often  preferred  to  extend  or  modify  some  already 
existing  principle  of  the  common  law.1  He  was,  as 
it  has  been  aptly  expressed,  making  an  appendix 
to  the  common  law.  He  was  in  no  way  concerned 
with  making  a  new  body  of  law;  he  dealt  with  each 
case  singly  as  it  arose.  Generalisation  was  not  his 
function,  and,  in  the  early  days,  past  decisions  were 
not  much  used  as  precedents.  "Sufficient  for  the 
day  are  the  cases  in  that  day's  cause-list. " 

The  common-law  judges  were  not  friendly  to  this 
upstart  jurisdiction,  and  protest  against  it  often  found 
voice  in  Parliament.  In  the  early  days,  before  Chan- 
cery attempted  much  supervisory  jurisdiction,  the 
chief  objection  was  against  its  purely  common-law 
practice.  When  the  common  law  had  a  sufficient 
remedy,  the  fact  that  a  party  to  a  suit  was  poor  or 
feared  his  powerful  opponent  was  not  regarded  a 

1  "To  restrain  an  unconscionable  or  inequitable  use  of  legal 
rights  is  not  (such  seems  the  theory)  to  override  the  law,  it  really 
is  to  do  what  the  law  means  to  do,  but  is  prevented  from  doing  by 
causes  not  to  be  foreseen.  .  .  .  But  we  may  perhaps  mark  the 
character  of  equity  by  calling  it  supplemental  law.  From  the 
first  the  theory  had  been  that  equity  had  come  not  to  destroy  but 
to  fulfil,  and  the  success  of  the  Chancery,  which  was  jealously 
watched  by  Parliament,  had  depended  on  at  least  an  outward 
observance  of  this  theory. " — Maitland,  Justice  and  Police,  pp. 
36,  38- 


The  Judiciary  215 

sufficient  reason  for  drawing  such  suit  from  the  court 
where  it  naturally  belonged.  This  side  of  Chancery's 
business  never  became  important,  and  in  time  tended 
to  decrease.  To  its  supplementary  or  equitable  juris- 
diction, Parliament  was  never  able  to  urge  very  valid 
objections,  and  the  common-law  courts  tacitly,  though 
grudgingly,  conceded  that  here  the  new  court  had  a 
reason  for  existence.  But  though  Chancery's  work 
in  this  line  was  soon  considerable,  it  was  desultory, 
the  field  of  activity  was  vague.  No  important,  de- 
finable class  of  cases  had  been  appropriated.  Had 
this  condition  continued,  Chancery  could  hardly  have 
become  a  separate  jurisdiction,  and  its  later  his- 
tory would  have  been  radically  different  and  far  less 
important. 

About  the  end  of  the  fourteenth  century,  a  special 
kind  of  business,  growing  out  of  the  inadequacy  of 
the  land  law,  was  brought  into  Chancery  in  such 
quantity  that  it  was  soon  regarded  as  the  peculiar 
jurisdiction  of  that  court.  Under  the  common  law, 
it  was  impossible  to  will  land,  and  the  feudal  accom- 
paniments of  tenure  were  often  felt  to  be  burdensome 
and  antiquated.  Was  there  no  possibility  of  enjoying 
the  use  and  profit  of  land  while  escaping  the  respon- 
sibilities of  ownership?  Was  there  no  way  in  which 
a  man  could  determine  who  should  have  the  use  of 
his  land  after  him0  Necessity  was  the  mother  of 
invention,  or  rather  of  extension  and  adaptation. 
For  the  required  method  existed  already,  but  had  been 
confined  to  a  narrow  sphere.  In  the  thirteenth 
century,  a  device  had  been  often  used  by  which  the 
Franciscan  friars,  who  by  the  rule  of  their  order  could 
own  no  property,  enjoyed  the  use  of  real  estate  while 


2i<5        Period  of  Constitution  Making 

not  technically  owning  it.  A  man  disposed  of  lands 
and  houses  to  a  party  who  was  to  be  its  legal  owner, 
but  who,  by  the  terms  of  the  transaction,  was  to  hold 
them  to  the  use  of  a  certain  body  of  friars.  This  device 
had  been  occasionally  used  from  very  ancient  times, 
but  it  never  became  prominent  until  the  peculiar 
need  of  the  friars  led  to  its  rapid  extension  after  their 
coming  to  England.  In  its  early  use,  its  success  de- 
pended entirely  upon  the  good  faith  of  the  legal  owner 
of  the  property ;  when  the  contract  was  made  between 
him  and  the  grantor,  he  was  bound  in  honour  to  hold 
the  land  to  the  use  stipulated.1  Because  the  device 
had  been  so  seldom  used  before  the  thirteenth  century, 
it  had  obtained  no  recognition  in  the  common  law; 
for  when  it  came  into  frequent  use  that  law  had  passed 
its  receptive  period.  So  if  the  owner  chose  to  dis- 
regard his  honourable  understanding,  there  was  no 
legal  remedy  for  the  party  to  whose  use  the  property 
had  been  given.  However,  the  beneficiaries  being 
for  the  most  part  clergy,  it  is  probable  that  the  church 
courts  sometimes  took  account  of  such  breach  of  con- 
tract. At  any  rate,  the  friars  could  always  invoke  the 
terrors  of  excommunication  and  interdict  against  un- 
faithful legal  owners. 

The  king  took  little  account  of  this  method  of 
benefiting  the  friars,  but  he  was  becoming  greatly 
alarmed  at  the  amount  of  land  passing  into  the  owner- 
ship of  the  church  in  general.  Hence  the  Statute 
of  Mortmain,  1279,  which  prohibited  further  alienation 
of  land  to  the  clergy.2  The  problem  of  dodging  this 

1  When  friars  were  the  beneficiaries,  the  legal  owner  was  very 
often  a  borough. 

J  A.  and  S.,  pp.  71,  72. 


The  Judiciary  217 

statute  immediately  arose.  The  method  was  at  hand. 
Friars  could  not  own  land  because  of  their  rule;  by 
the  Statute  of  Mortmain,  the  rest  of  the  clergy  i  could 
own  no  more  land  than  they  already  had.  To  meet 
the  second  case,  as  the  first,  legal  ownership  might 
be  vested  in  a  person  or  persons,  who,  for  substantial 
reasons,  entered  into  a  private  understanding  to  allow 
the  use  of  the  land  to  the  church.  Thus  the  practice 
of  uses  was  greatly  extended  as  the  fourteenth  century 
progressed.  An  act  of  1392  very  effectually  put  a 
stop  to  it  as  far  as  the  church  was  concerned 2 ; 
but  before  that  time,  it  had  occurred  to  laymen  that 
here  was  a  neat  way  to  accomplish  for  themselves 
certain  things  not  provided  for  by  the  common 
law. 

Assuming  the  feoffees  to  uses  3  to  be  willing  and  faithful 
instruments  of  the  beneficial  owner,  his  advantages  were 
great.  Though  he  were  involved  in  the  civil  strife  of 
York  and  Lancaster,  and  dealt  with  as  a  traitor  by  vic- 
torious enemies,  the  land  would  be  secured  for  his  children ; 
for  it  legally  belonged  not  to  him  but  to  the  feoffees  to 
uses,  and  therefore  was  not  forfeited  by  his  attainder. 
For  the  same  reason  nothing  was  payable  to  the 
overlord  on  his  death;  there  could  be  no  legal  succession 
while  any  of  the  feoffees  remained  alive,  and  herein  was 
the  convenience  of  naming  several  in  the  first  instance. 
The  numbers  might  be  kept  up  from  time  to  time  by  new 
conveyances,  as  is  the  common  practice  to  this  day  with 

1  The  language  of  the   statute   limited  its  application  to    the 
monastic  clergy,  but  in  its  later  interpretations  this  limitation  was 
not  observed.     See  Gross,  Mortmain  in  Medieval  Boroughs,  Ameri- 
can Historical  Review  xii.,  741. 

2  A.  and  S.,  p.  155. 

3  This  was  the  technical  term  for  legal  owners. 


218        Period  of  Constitution  Making 

bodies  of  trustees  established  for  charitable  and  public 
purposes. 1 

It  will  be  seen  from  this  how  the  beneficiary  could 
virtually  will  the  land.  While  the  legal  ownership 
could  not  be  regulated  by  will,  the  extra-legal  use 
could  be  disposed  of  in  a  purely  informal  way;  the 
beneficiary  could  declare  to  the  legal  owners  where 
the  use  should  go  after  his  death.  With  outgrown 
land  laws  and  much  to  make  ownership  burdensome 
and  hampering,  the  idea  of  uses  just  fitted  the  situation 
and  became  so  popular  that  a  large  part  of  the  land 
of  England  was  affected  by  it  in  the  early  fifteenth 
century.2 

But  uses  were  not  recognised  by  the  law,  and  the 
crucial  question  was  where  an  authority  could  be 
found  to  force  the  legal  owner  to  keep  his  honourable 
agreement.  For  when  the  practice  became  general, 
trusting  to  personal  honour  proved  an  inadequate 
guarantee.  The  same  resource  was  found  as  in  other 
cases  in  which  the  common  law  failed  to  provide  a 
remedy;  the  distressed  beneficiary,  who  was  being 
defrauded  of  his  equitable  rights,  appealed  to  the 
Chancellor  as  the  special  depository  of  the  king's 
all-powerful  and  overriding  justice.  The  Chancellor 
interfered  and,  by  fine  or  imprisonment,  forced  the 
legal  owners  to  keep  faith.  It  was  not  long  before 
this  work,  developing  subdivisions  and  minutiae  that 
cannot  be  examined  here,  was  the  chief  and  char- 

1  Pollock,  The  Land  Laws,  p.  93. 

*  At  the  beginning  of  the  fourteenth  century,  nearly  all  free 
tenures  in  England  were  subject  to  the  law  of  primogeniture.  By 
the  system  of  uses,  provision  could  be  made  for  younger  sons  and 
daughters.  This  furnished  a  powerful  motive  for  extending  the 
system. 


The  Judiciary  219 

acteristic  business  of  the  Court  of  Chancery.  Thus 
during  the  last  two  centuries  of  the  middle  ages,  a 
transformation  of  the  land  laws  was  well  under  way, 1 
and  a  new  court  with  a  special  jurisdiction  had  come 
into  existence.  For  Chancery's  monopoly  of  this 
new  field  completed  its  separation  from  the  parent 
stem;  by  the  reign  of  Edward  IV.,  the  Chancellor, 
in  his  judicial  capacity,  no  longer  acted  for  the  Council. 
His  court  had  already  created  considerable  supple- 
mentary law,  and,  with  the  evolution  of  the  common- 
law  courts  in  mind,  it  is  not  hard  to  understand  that 
there  would  come  a  time  when  the  Chancellor's  con- 
science had  become  "a  technical  conscience"  and  his 
court  as  much  bound  by  precedent  as  its  predecessors.2 

1  On  this  strange  method  of  changing  a  body  of  law,  Maitland 
comments:   "It   is   an   exceedingly  curious  episode.     The   whole 
nation  seems  to  enter  into  one  large  conspiracy  to  evade  its  own 
laws,  to  evade  laws  which  it  has  not  the  courage  to  reform.     The 
Chancellor,  the  judges,  and  the  parliament  seem  all  to  be  in  the 
conspiracy.     And  yet  there  is  really  no  conspiracy:  men  are  but 
living  from  hand  to  mouth,  arguing  from  one  case  to  the  next  case, 
and  they  do  not  see  what  is  going  to  happen." — Social  England  ii., 
487.     It  is  apparent  that,  as  this  way  of  manipulating  legal  owner- 
ship grew  more  common,  the  number  of  occasions  upon  which 
the  great  landholders  could  collect  reliefs,  and  the  king  reliefs  and 
primer  seisins,  would  decrease.     There  is  some  evidence  that  king 
and  lords  were  becoming  aware  of  this  during  the  fifteenth  century; 
but  Henry  VIII.  was  the  first  king  who  was  fully  aroused  to  the 
situation.     He  attempted  to  cope  with  it  by  forcing  through  Parlia- 
ment the  famous  Statute  of  Uses  in  1536.     For  a  discussion  of  the 
failure  and  the  peculiar  legal  results  of  this  statute,  see  Pollock, 
The  Land  Laws,  pp.  97—106.     For  further  discussion  of  the  Chancel- 
lor's jurisdiction,  see  W.   P.  Baildon,  Introduction  to  Select  Cases 
in  Chancery  (Selden  Society,  vol.  x.) . 

2  For  a  brief  summary  of  the  later  history  of  Chancery,  see  Medley, 
English  Constitutional  History,  pp.   381-383.     Maitland   has  very 
perfectly  summed  up  the  constitutional  significance  of  the  two  late 
judicial  developments  with  which  this  section  has  been  mainly  con- 


220        Period  of  Constitution  Making 

4.  The  Common  Law. — The  exceptional  character 
of  English  legal  history  has  been  an  important  element 
in  determining  the  final  character  of  the  English 
government.  In  the  period  covered  by  this  book, 
the  main  features  of  the  law  were  established.  It  is 
therefore  proper  here,  without  touching  the  content 
of  the  law,  to  examine  briefly  these  distinguishing 
features;  especially  is  it  the  purpose  to  note  their 
constitutional  bearing.  The  term  common  law,  with 
which  it  seems  necessary  to  head  this  division,  is  at 
present  used  in  more  than  one  sense  and  often  vaguely. 

It  has  been  thus  defined : 

(a)  In  its  most  general  sense,  the  system  of  law  in  force 
among  English-speaking  peoples,  and  derived  from  Eng- 
land, in  contradistinction  to  the  civil  or  Roman  law  and 
the  canon  or  ecclesiastical  law.  (b)  More  appropriately, 
the  parts  of  the  former  system  which  do  not  rest  for  their 
authority  on  any  subsisting  express  legislative  act;  the 
unwritten  law.  In  this  sense  common  law  consists  in 

earned:  "  Somehow  or  another  England,  after  a  fashion  all  her  own, 
had  stumbled  into  a  scheme  for  the  reconciliation  of  permanence 
with  progress.  The  old  medieval  criminal  law  could  be  preserved 
because  a  Court  of  Star  Chamber  would  supply  its  deficiences; 
the  old  private  law  could  be  preserved,  developed,  transfigured, 
because  other  modes  of  trial  were  limiting  it  to  an  appropriate 
sphere.  And  so  our  old  law  maintained  its  continuity. 
The  Star  Chamber  and  the  Chancery  were  dangerous  to  our  political 
liberties.  Bacon  could  tell  King  James  that  the  Chancery  was  the 
court  of  his  absolute  power.  But  if  we  look  abroad  we  shall  find 
good  reason  for  thinking  that  but  for  these  institutions  our  old- 
fashioned  national  law,  unable  out  of  its  own  resources  to  meet  the 
requirements  of  a  new  age,  would  have  utterly  broken  down,  and 
the  'ungodly  jumble"  would  have  made  way  for  Roman  jurispru- 
dence and  for  despotism.  Were  we  to  say  that  equity  saved  the 
common  law,  and  that  the  Court  of  Star  Chamber  saved  the  con- 
stitution, even  in  this  paradox  there  would  be  some  truth." — Social 
England  ii.,  489. 


The  Judiciary  221 

those  principles  and  rules  which  are  gathered  from  the 
reports  of  adjudged  cases,  from  the  opinions  of  text  writers 
and  commentators,  and  from  popular  usage  and  custom, 
in  contradistinction  to  statute  law.  (c)  More  narrowly 
that  part  of  the  system  just  defined  which  was  recognised 
and  administered  by  the  king's  justices  in  contradistinction 
to  the  modifications  introduced  by  the  chancellors  as 
rules  of  equity  in  restraint  or  enlargement  of  the  customary 
and  statutory  law. i 

Beside  this,  may  be  placed  the  history  of  the  term 
Common  law  first  meant  a  law  that  was  common  to 
all  England,  a  law  not  for  this  or  that  county  or 
borough.  It  was  thus  used  in  the  twelfth  and  thirteenth 
centuries.  It  was  next  used  in  opposition  to  statute 
law,  as  the  latter  developed  during  the  fourteenth 
century;  then  in  opposition  to  equity  when  the  Court 
of  Chancery  became  important  in  the  fifteenth  century. 
By  that  time,  the  conception  of  it  as  a  body  of  law  older 
than,  and  in  important  ways  distinguished  from,  two 
other  bodies  of  law  had  crowded  the  original  meaning 
out  of  the  word  common.  The  first  of  the  present 
usages,  cited  above,  seems  to  have  arisen  from  applying 
to  the  whole  of  England's  law  the  name  of  its  most 
characteristic  and  historically  important  part.  It  is 
an  untechnical  use,  but  serves  to  distinguish  England's 
law  and  legal  history  from  those  of  other  European 
countries. 

Had  no  system  of  king's  courts  grown  after  the 
Norman  Conquest,  the  Anglo-Saxon  law,  administered 
in  the  local  courts,  would,  of  course,  have  continued  to 

1  The  Century  Dictionary.  This  definition  has  been  quoted  in 
full  to  make  clear  the  present,  accepted  usages,  and  to  avoid  the 
necessity  of  explanations  in  the  course  of  the  discussion. 


222        Period  of  Constitution  Making 

develop.  It  seems  certain  from  what  is  known  of 
continental  history  that  from  such  a  law,  administered 
in  courts  so  isolated  from  one  another,  no  law  common 
to  the  whole  country  could  have  grown.  Without  the 
common  courts,  there  could  not  have  been  the  common 
law.  Rather,  the  differences,  which  existed  among  the 
localities  when  the  population  was  primitive  and  homo- 
geneous, would  have  become  ever  more  numerous 
and  inveterate.  The  kind  of  law  used  in  the  twelfth- 
century  king's  courts  has  already  been  noticed — it's 
adaptability,  the  multiplicity  of  its  sources.1  What 
needs  insistence  here  is  that  these  courts  were  common 
courts.  The  Curia  Regis  was  opening  wider  to  all 
litigants;  ever  more  regularly  did  it  send  out  judges  to 
travel  through  the  country  and  administer  law.  The 
same  judges  went  on  various  iters  and  gave  the  people 
the  same  law  the  country  over.  The  reign  of  Henry  II. 
was  most  distinctly  the  period  when  the  foundation  of 
the  common  law  was  laid,  both  as  to  its  content  and 
its  characteristic  of  commonness;  it  was  the  most 
creative  period  that  English  law  has  known.  But 
legislation  was  informal  and  largely  unconscious: 

...  a  few  written  or  even  spoken  words  commun- 
icated to  his  justices,  whom  he  was  constantly  sending  to 
perambulate  the  country,  might  do  great  things,  might 
institute  new  methods  of  procedure,  might  bring  new 
classes  of  men  and  things  within  the  pognisance  of  the 
royal  court.  Some  of  his  ordinances — or  "  assizes,"  as 
they  were  called — have  come  down  to  us;  others  we  have 
lost.  No  one  was  at  any  great  pains  to  preserve  their 
text,  because  they  were  regarded,  not  as  new  laws,  but  as 
mere  temporary  instructions  which  might  be  easily  altered. 
They  soon  sink  into  the  mass  of  unenacted  "  common  law.'' 

1  See  above,  p.  1 29  and  note  3. 


The  Judiciary  223 

Even  in  the  next,  the  thirteenth,  century  some  of  Henry's 
rules  were  regarded  as  traditional  rules  which  had  come 
down  from  a  remote  time,  and  which  might  be  ascribed  to 
the  Conqueror,  the  Confessor,  or  any  other  king  around 
/vhom  a  mist  of  fable  had  gathered. * 

From  the  middle  of  the  twelfth  to  the  middle  of  the 
thirteenth  century  was  the  time  when  the  common  law, 
as  opposed  to  statute  law  or  equity,  was  made.2  Those 
who  then  had  most  to  do  with  the  common  law  were 
trained  in  the  Roman  and  canon  laws ;  and  it  was  con- 
siderably influenced  from  Roman  sources,  not  by  much 
actual  borrowing,  but  by  the  unconscious  influences  of 
spirit  and  method.  It  has  been  well  said  that,  at  that 
early  time,  the  common  law  was  sufficiently  inoculated 
with  the  Roman  law  to  make  it  unlikely  to  fall  under 
the  latter 's  completer  sway  at  a  later  period.3  In  the 
last  half  of  the  thirteenth  century,  there  was  a  radical 
change  of  attitude  in  the  guardians  of  the  law.  Law 
was  no  longer  in  the  hands  of  ecclesiastics;  a  class  of 
professional  lawyers  was  forming.  As  the  common  law 
became  more  fixed  and  circumscribed,4  any  attempt  to 
modify  or  enlarge  it,  especially  from  what  was  doubt- 
less regarded  as  a  rival  system,  was  looked  upon  with 
disfavour. 

The  significance  in  legal  history  of  the  two  great 
treatises  of  Glanville  and  Bracton,  the  one  coming  at 
the  beginning  and  the  other  at  the  end  of  the  common 
law's  creative  century,  must  be  touched  upon  here. 

>  Maitland,  in  Traill's  Social  England  ii.,  408,  409. 

z  Its  growth,  at  that  time,  through  the  making  of  writs  has  been 
dealt  with  above,  pp.  138-140. 

3  See  the  citation  from  Brunner  in  Maitland,  English  Law  and 
the  Renaissance,  note  55. 

*  See  above,  pp.  206-209. 


224        Period  of  Constitution  Making 

Late  in  Henry  II.  's  reign  was  written  a  Treatise  on 
the  Laws  and  Customs  of  England,  ascribed  to  Ranulf 
Glanville  and  always  passing  under  his  name,  but 
more  probably  the  work  of  Hubert  Walter. 1  The 
impulse  to  write  such  a  treatise,  a  very  remarkable 
performance  for  the  time,  probably  came  from  the  re- 
vived interest  in  Roman  law  characteristic  of  the 
twelfth  century.  But  there  is  little  Roman  law  in  the 
work,  and  the  author  shows  no  desire  to  adopt  it;  it 
is  not  Roman  even  in  the  matter  of  arrangement. 
Though  the  Treatise  was  unofficial,  it  had  a  great  in- 
fluence upon  the  law  and  procedure  with  which  it  dealt. 
It  was  an  able  attempt  to  formulate  and  arrange  a  very 
vague  and  elusive  material,  and  put  into  durable  con- 
dition many  valuable  things  that  might  otherwise  have 
been  lost.  Its  coming  at  the  end  of  Henry  II. 's  reign 
was  extremely  opportune. 

Equally  timely  was  the  more  colossal  work  of  Brae- 
ton,  Concerning  the  Laws  and  Customs  of  England.  It 
was  written  about  the  middle  of  the  thirteenth  cent- 
ury, and  is  by  far  the  most  important  law-book  which 
appeared  in  England  in  the  middle  ages.  It  owes  much 
more  to  Roman  law  than  Glanville's  work,  about  one 
fifteenth  of  it  being  borrowed  from  the  Summa  of  Azo, 
"a  legist  who  stood  at  the  head  of  the  Bolognese  school 
of  law  early  in  the  thirteenth  century."  There  was 
also  much  that  was  Roman  in  Bracton's  arrangement 
and  method  of  systematising.  But  with  the  exception 
stated,  the  law  that  Bracton  gives  is  thoroughly  English. 
It  is  not  theoretical,  an  ideal  system;  but  emphatically 
the  law  of  his  time,  the  law  that  had  been  made  by 

1  See  Maitland's  article  on  Glanville  in  the  Dictionary  of  National 
Biography. 


The  Judiciary  225 

adjudged  cases,  and  the  specific  cases  that  he  cites  are 
many.  Just  as  this  work  appeared,  the  forces  tend- 
ing to  fix  the  common  law  were  beginning  to  make 
themselves  felt.  Although,  like  Glanville's,  this  was 
a  purely  private  undertaking,  it  is  hardly  necessary 
to  state  that  such  a  comprehensive  and  sympathetic 
statement  of  English  law  coming  at  such  a  time  became 
an  authority  of  the  highest  influence. 

An  epoch  in  legal  history  was  closing  with  Bracton. 
A  new  system  of  courts,  with  appropriate  law  and  pro- 
cedure, had  been  made;  borrowing  from  the  Roman 
law,  at  least  for  a  long  time  to  come,  was  at  an  end ;  the 
making  of  new  writs,  that  is,  new  forms  of  action,  was 
no  longer  easy;  a  system  of  legal  forms  had  been  cre- 
ated. *  One  is,  at  first,  surprised  that  a  law  and  pro- 
cedure so  young  and  mobile  under  Henry  II.  should 
have  grown  old  and  rigid  in  his  grandson's  reign.  The 
truth  seems  to  be  that  the  time  was  too  early  to  obtain, 
by  any  process,  a  permanent  and  rational  system  of 
equity.  England  passed  rather  rapidly  from  "the 
old  oral  and  traditional  formalism"  of  the  Anglo- 
Saxon  period  to  this  "new  written  and  authoritative 
formalism"  which  "in  part  supplanted  and  in  part 
reinforced  it."  But  the  advance  of  the  new  over  the 
old  was  very  great.  That  there  was  any  break  from 
the  old  system  and  a  time  when  new  courts  exercised 
an  equitable  jurisdiction  for  all  England,  a  time  of  legal 

1  This  system  greatly  resembles  the  Roman  formulary  system, 
especially  in  its  manner  of  growth,  but  was  not  derived  from  it.  It 
could  not  have  been,  for  the  lawyers  of  this  time  were  interested, 
if  at  all,  in  the  finished  product  of  Roman  law,  the  Justinian  Code, 
not  in  the  history  of  that  law;  they  were  probably  not  aware  that 
it  had  passed  through  an  evolution  analogous  to  that  through  which 
English  law  was  passing. 


226        Period  of  Constitution  Making 

creation  on  a  splendid  scale,  was  owing  to  the  Norman 
Conquest.  And  the  new  formalism  was  a  common 
formalism,  while  the  old  was  not. 

The  development  of  the  new  formalism  was  not  an 
unmixed  evil.  When  a  man  chose  an  action  in  the 
late  thirteenth  century,  he  embarked  on  a  sure  course, 
all  was  marked  out  for  him;  in  an  unspeakable  mass 
of  rules,  an  attempt  was  made  to  provide  foi  every 
contingency.  This  meant  that  the  discretionary  power 
of  the  judges  was  small.  With  the  judges  of  the  three 
common-law  courts  so  fully  under  royal  control  as  they 
were  for  four  centuries  after  this,  the  formulary  system 
must  be  regarded  as  having  been  an  important  safe- 
guard of  the  subject's  liberty.  The  modern  develop- 
ment has  been  to  give  the  judge  more  freedom,  to 
allow  him,  in  many  particulars,  to  suit  the  action  to  the 
peculiarities  of  the  case;  "but  discretionary  powers  can 
only  be  safely  entrusted  to  judges  whose  impartiality 
is  above  suspicion  and  whose  every  act  is  exposed 
to  public  and  professional  criticism."1  It  must  not 
be  conceived,  however,  that  the  judges  of  the  later 
middle  ages  were  entirely  powerless  to  initiate;  they 
were  always  making  some  new  law  when  they  made 
their  judgments.  But  their  judgments  of  law  were 
based  upon  the  verdicts  of  jurors  drawn  from  the 
people,  and  these  verdicts  were  increasingly  judgments 
of  fact;  the  judges  applied  the  law  to  facts  judged  by 
the  people.  This  kept  the  law  from  any  theoretical 
flights  which  might  have  borne  it  away  from  the 

1  P.  and  M.  ii.,  563.  For  a  full  discussion  of  the  forms  of  action, 
see  ibid,  ii.,  558-573.  "Die  Form  ist  die  geschworene  Feindin  der 
Willkur,  die  Zwillingschwester  der  Freiheit." — Ihering,  Geist  des 
rdmischen  Rechts  ii.  '2),  §  45,  quoted  in  P.  and  M.  ii.,  563,  note  2. 


The  Judiciary  227 

domain  of  the  practical  and  the  serviceable.  The  law 
never  escaped  from  the  people;  they  were  actually 
making  their  law  or  keeping  it  from  being  made.  No 
absolutism  was  running  the  people  into  the  mould 
of  a  foreign,  or  theoretically  perfect,  law.  On  the 
contrary,  the  law  has  reflected  all  the  peculiarities, 
incongruities,  and  conservatisms  of  the  English  people 
at  any  specific  time.  This  went  far  to  make  it  in- 
eradicable; the  people  could  not  get  along  without 
it  because  it  was  a  part  of  them. 

Another  agency  that  helped  make  the  English 
common  law  permanent  had  its  origin  at  just  the 
time  the  law  was  completing  its  period  of  rapid 
growth.  The  great  English  law  schools,  the  Inns 
of  Court,  are  first  dimly  seen  about  the  end  of  the 
thirteenth  century.  They  became  thoroughly  estab- 
lished in  the  reigns  of  Edward  III.  and  Richard  II. 
It  is  an  interesting  fact  that  the  common  law  did 
not  find  its  home  in  the  universities.  There  the 
ground  had  been  taken  by  the  civil  and  canon 
laws,  and  the  teaching  of  these  had  become  so 
identified  with  the  university  work  that  when  there 
was  an  English  law  to  teach  it  seemed  an  un- 
natural thing  to  give  it  a  place  beside  them. 1  No 
one  consciously  founded  the  law  schools;  they  grew 
out  of  the  needs  and  conditions  of  the  time,  which 

1  "  The  voice  of  John  Wyclif  pleading  that  English  law  was  the 
law  that  should  be  taught  in  English  universities  was  a  voice  that 
for  centuries  cried  in  the  wilderness.  ...  It  was  1758  before 
Blackstone  began  his  ever  famous  course  at  Oxford.  The  chair  that 
I  cannot  fill  was  not  established  until  the  trans-Atlantic  Cambridge 
was  setting  an  example  to  her  elderly  mother." — Maitland,  English 
Law  and  the  Renaissance,  pp.  25,  26. — Maitland  was  Downing 
Professor  of  the  Laws  of  England  in  the  University  of  Cambridge. 


228        Period  of  Constitution  Making 

determined     their    location    and     most    else    about 
them. 

In  the  first  half  of  the  thirteenth  century,  it  was 
becoming  evident  that  English  justices  would  soon 
cease  to  be  drawn  from  the  clergy.  The  spirit  of  this 
period  of  papal  power  and  church  unity  was  to  keep 
the  clergy  from  participating  in  lay  affairs.  If  they 
touched  such  things,  it  should  be  as  masters,  not 
participants.  It  was  especially  unseemly  for  bishops 
to  sit  on  the  bench  and  dispense  a  layman's  law,  which 
dealt  with  much  that  was  a  contamination  to  an 
ecclesiastic.  A  series  of  canons,  forbidding  the  clergy 
to  deal  with  secular  law,  began  to  appear,  and  were 
not  without  effect.  The  clergy  became  more  careful 
to  withdraw  when  the  death  sentence  was  pronounced 
or  a  matter  considered  to  which  they  might  not  listen 
without  scandal ;  and  many  were  the  devices  of  elision 
and  abbreviation  in  wording  by  which  their  share  in 
such  affairs  was  concealed  and  their  consciences  saved. 
But  it  was  harder  to  conceal  a  breach  of  the  new  rules 
in  the  case  of  the  higher  clergy,  and  bishops  were  found 
less  and  less  among  the  justices ;  their  places  were  taken 
by  laymen  who  had  come  to  a  knowledge  of  the  law 
by  filling  subordinate  positions  in  the  courts.  At  the 
end  of  Henry  III.'s  reign  there  were  more  laymen  than 
clerks  connected  with  the  courts,  and,  though  there 
were  clerical  justices  throughout  the  reign  of  Edward  I., 
the  end  was  well  in  sight.*  A  well-defined  body  of 
lawyers,  practising  in  the  king's  courts,  had  formed 
and  many  justices  came  to  the  bench  who  had  already 
served  as  advocates.  To  speak  of  a  class  of  professional 
lawyers  and  lay  justices,  who  had  been  lawyers,  seems 
very  modern,  and,  in  truth,  Edward  I.'s  reign,  in  many 


The  Judiciary  229 

ways,  marked  the  beginning  of  the  modern  period  in 
the  legal  history  of  England. 

When  English  law  severed  its  connection  with 
ecclesiastics,  it  was  separated  from  the  Roman  law 
and  also  from  the  learning  and  literature  of  the  time. 
The  danger  that  absolutism  might  be  fostered  by  the 
absorption  of  too  much  Roman  law  was  past,  and 
there  was  also  little  possibility  that  the  law  of  the 
future  would  be  blessed  with  any  great  legal  treatise 
similar  to  that  of  Bracton.  The  divorce  of  law  and 
learning  produced  bad  results.  Edward  I.  was  con- 
scious.of  the  fact  and,  in  1290  and  1292,  instituted  com- 
missions of  inquiry.  By  the  second  commission,  it  was 
suggested  that  promising  students  be  gathered  from 
the  various  parts  of  England  and  placed  in  proximity 
to  the  courts  at  Westminster,  with  the  evident  in- 
tention of  having  them  trained  for  service  in  those 
courts.  The  origin  and  early  history  of  the  Inns  of 
Court  are  not  known  in  detail,  but  here  was  the  situa- 
tion out  of  which  they  grew.  A  common  law  was 
recognised;  some  sense  of  its  national  character  was 
dawning,  of  its  distinction  from  Roman  or  canon 
law ;  it  was  in  the  hands  of  laymen  and  it  could  not  be 
taken  for  granted  that  these  men  had  received  any 
training,  legal  or  other,  at  the  universities — as  a 
matter  of  fact,  they  got  their  knowledge  of  the  law  and 
entered  its  higher  service  through  training  in  its 
courts.  And  these  courts  were  at  Westminster;  this 
was  the  home  of  the  common  law,  not  Oxford  or 
Cambridge.  Young  men  looking  to  a  legal  career 
gathered  in  the  vicinity,  and  the  four  great  law  schools 
were  born :  Lincoln's  Inn,  the  Inner  Temple,  the  Middle 
Temple,  and  Gray's  Inn.  It  is  not  the  place  here  to 


230        Period  of  Constitution  Making 

say  anything  of  the  organisation  or  work  of  these 
schools.  Let  it  merely  be  noted  that  their  character 
was  unique ;  in  origin  essentially  fraternities  of  lawyers, 
and  always  remaining  such,  they  undertook  the  training 
of  students,  devised  a  system  of  instruction,  govern- 
ment, and  discipline  entirely  their  own,  had  their  own 
preparatory  schools,  and  conferred  "what  in  effect  were 
degrees,  and  degrees  which  admitted  to  practice  in 
the  courts."1 

The  importance  of  the  law  schools  in  this  connection 
was  their  decisive  influence  in  making  the  common  law 
enduring;  they  were  thus  largely  responsible  for  that 
law's  share  in  England's  governmental  destiny.  This 
achievement  of  theirs  is  summed  up  in  Maitland's  saying 
that  "taught  law  is  tough  law."  It  would  "be  difficult 
to  conceive  any  scheme  better  suited  to  harden  and 
toughen  a  traditional  body  of  law  than  one  which,  while 
books  were  still  uncommon,  compelled  every  lawyer 
to  take  part  in  legal  education  and  every  distinguished 
lawyer  to  read  public  lectures."2  In  the  law  schools, 
were  used  the  Year  Books,  also  a  unique  product  of  the 
English  court  system  and  a  further  proof  that  at  the 
end  of  the  thirteenth  century  a  new  era  in  English 
law  had  begun.3  In  1292,  just  when  Edward  was 

>  Maitland,  English  Law  and  the  Renaissance,  note  60 ;  see  this 
note  also  for  literature  upon  the  subject.  "What  is  distinctive  of 
medieval  England  is  not  parliament,  for  we  may  everywhere  see 
assemblies  of  estates,  not  trial  by  jury,  for  this  was  but  slowly  sup- 
pressed in  France.  But  the  Inns  of  Court  and  the  Year  Books 
that  were  read  therein,  we  shall  hardly  find  their  like  elsewhere." — 
Ibid.,  p.  27. 

1  Ibid.,  pp.  27,  28. 

» A  valuable  account  of  the  Year  Books  in  general  is  given  in 
Maitland,  Year  Books  of  Edward  II.,  vol.  i.,  pp.  ix-xx.  (Selden 
Society,  vol.  xvii.). 


The  Judiciary  231 

investigating  the  decline  in  legal  learning  which  resulted 
from  the  withdrawal  of  the  clergy,  the  Year  Books 
began.  They  continued,  with  almost  no  interruption, 
until  1535.  They  were  "so  called  because  there  was 
one  for  each  regnal  year.  They  are  anonymous  law 
reports,  written  in  French,  containing  the  discussions 
of  the  judges  and  counsel  on  the  points  of  law,  and  the 
grounds  of  judgment  in  important  cases  tried  before 
the  royal  justices  either  at  Westminster  or  in  Eyre. 
According  to  an  old  legal  tradition,  these  reports  had 
official  sanction  and  were  drawn  up  by  reporters  in 
the  employ  of  the  crown."1  These  reports,  continued 
with  such  regularity  and  fulness,  are  a  proof  of  the 
persistence  of  the  spirit  of  conservatism  and  respect  for 
precedent  which  marked  the  time  of  their  birth,  and 
they  aided  greatly  in  its  preservation.  Since  no  more 
law  was  to  be  created,  the  matter  of  chief  interest  was 
to  know  how  successive  judges  had  used  the  already 
existing  principles  and  procedure.  During  the  four- 
teenth and  fifteenth  centuries,  precedent  was  built 
upon  precedent  and  the  mass  of  recorded  rules  was 
reasoned  upon  and  refined  to  the  last  extremity  of 
logic  in  the  academic  atmosphere  of  the  Inns  of  Court, 
until  the  common  law  had  become  a  marvel  and  a 
terror  to  every  one  outside  the  legal  fraternity.  Since 
Edward  L,  the  law  of  England  has  undergone  no  such 
fundamental  change  as  it  experienced  in  his  time. 
The  modern  lawyer  may  trace  back  his  legal  traditions 
quite  easily  through  more  than  six  centuries,  but  the 
attempt  to  follow  them  into  the  wonderful,  creative  cen- 
tury before  Edward  I.,  in  many  cases,  proves  fruitless.2 

1  Gross,  Sources  and  Literature  of  English  History,  p.  353. 

?  But  the  number  of  $uch  cases  has  been  greatly  lessened  by  the 


232        Period  of  Constitution  Making 

It  has  been  shown  how  the  law  of  England  was  made 
a  common  law  to  all  freemen  and  all  localities;  how  it 
was  created  by  the  people,  their  legal  garment  made 
bit  by  bit  and  fitting  into  all  the  sinuosities  of  the 
national  character;  how  it  was  "toughened"  by  teach- 
ing and  the  unbroken  yearly  record  of  its  application. 
In  the  middle  of  the  sixteenth  century,  when  England 
was  passing  into  the  full  tide  of  Renaissance  influence 
and  the  worship  of  the  Roman  law  was  supreme  in 
Europe  and  receptions1  were  the  order  of  the  day,  the 
vitality  of  the  English  law  was  put  to  a  severe  test. 
From  the  middle  of  Henry  VIII. 's  reign  to  the  early 
part  of  Elizabeth's,  there  were  many  evidences  of  its 
decline.  Other  European  countries  received  the  Ro- 
man law  because  their  old  law  was  not  a  common  law, 
was  not  a  vital,  growing  law  with  a  hold  upon  the 
people,  in  short,  because  it  was  an  impossible  law  for 
states  advancing  rapidly  in  unity  and  civilisation. 
As  far  as  can  be  judged,  England  narrowly  escaped  a 
reception,  for  all  the  surface  forces — and  many  of  them 
were  powerful — were  working  for  it.  But  she  escaped 
for  the  simple  reason  that  she  had  a  law  that  measurably 
sufficed  her,  a  law  with  such  deep  and  tough  roots  in 
the  national  life  that  to  tear  it  away  would  have  been 
a  sort  of  national  suicide.  When  England  passed  from 
the  medieval  into  the  modern,  she  did  not,  like  some  of 
her  sister  countries,  leave  the  medieval  law  behind.2 

work  of  Pollock  and  Maitland  which  deals  mainly  with  that 
century. 

1  The  technical  term  for  the  adoption  of  the  Roman  law  by  a 
nation. 

J  Maitland's  brilliant  lecture,  The  English  Law  and  the  Renais- 
sance, should  be  read  in  this  connection.  It  is  with  a  sort  of  con- 
gratulatory enthusiasm,  possible  only  to  one  who  had  entered  so 


The  Judiciary  233 

The  constitutional  importance  of  this  preservation 
of  the  old  law  can  hardly  be  overstated. 

The  English  common  law  was  tough,  one  of  the  toughest 
things  ever  made.  And  well  for  England  was  it  in  the 
days  of  Tudors  and  Stuarts  that  this  was  so.  A  simpler, 
a  more  rational,  a  more  elegant  system  would  have  been 
an  apt  instrument  of  despotic  rule.  At  times  the  judges 
were  subservient  enough:  the  king  could  dismiss  them 
from  their  offices  at  a  moment's  notice;  but  the  clumsy, 
cumbrous  system,  though  it  might  bend,  would  never 
break.  It  was  ever  awkwardly  rebounding  and  con- 
founding the  statecraft  which  had  tried  to  control  it. 
The  strongest  king,  the  ablest  minister,  the  rudest  lord- 
protector  could  make  little  of  this  "ungodly  jumble."1 

deeply  into  the  life  of  the  crochety  but  salutary  old  system ,  that  he 
speaks  of  its  safe  passage  of  the  crisis  and  of  its  recovering  strength. 
"  When  the  middle  of  the  century  is  past  the  signs  that  English  law 
has  a  new  lease  of  life  become  many.  The  medieval  books  poured 
from  the  press,  new  books  were  written,  the  decisions  of  the  courts 
were  more  diligently  reported,  the  lawyers  were  boasting  of  the 
independence  and  extreme  antiquity  of  their  system.  We  were 
having  a  little  Renaissance  of  our  own :  or  a  gothic  revival  if  you 
please.  .  .  .  That  wonderful  Edward  Coke  was  loose.  The 
medieval  tradition  was  more  than  safe  in  his  hands." — P.  29.  "Sir 
Edward  Coke,  the  incarnate  common  law,"  he  calls  him  in  another 
place,  who  "shovels  out  his  enormous  learning  in  vast  disorderly 
heaps.  Carlyle's  felicity  has  for  ever  stamped  upon  Coke  the  ad- 
jective 'tough ' — '  tough  old  Coke  upon  Littleton,  one  of  the  toughest 
men  ever  made.'  We  may  well  transfer  the  word  from  the  man  to 
the  law  that  was  personified  in  him." — Traill,  Social  England  ii.,  481. 
1  Ibid.  Roman  law  had  these  same  characteristics  ' '  during  the 
ages  of  its  growth,  and  it  is  well  to  remember  that,  as  Roman  law 
took  on  a  more  scientific  form,  and  was  reduced  to  an  organised 
system,  its  life  and  power  of  growth  ceased.  History  does  not 
show  any  necessary  connection  between  these  two  events;  but 
certainly,  if  the  formation  of  a  scientific  system  on  the  basis  of  the 
English  common  law  is  to  mean  that  our  law  and  institution-making 
power  is  past,  then  every  Anglo-Saxon  may  most  heartily  pray  that 


234        Period  of  Constitution  Making 

A  final  struggle  between  king  and  people  would 
probably  have  occurred  in  the  seventeenth  century 
even  if  the  old  law  had  been  replaced  by  the  Roman, 
"but  it  would  hardly  have  been  that  struggle  for  the 
medieval,  the  Lancastrian,  constitution  in  which  Coke 
and  Selden  and  Prynne  and  other  ardent  searchers  of 
mouldering  records  won  their  right  to  be  known  to 
schoolboys,"  i  and  one  can  hardly  feel  much  hope  for 
the  people  in  such  hypothetical  conflict,  the  Stuart 
kings  having  the  Roman  law  for  their  ally. 

But  to  say  nothing  of  the  political  side  of  the  matter, 
of  the  absolute  monarchy  which  the  Roman  law  has  been 
apt  to  bring  in  its  train,  it  is  probably  well  for  us  and  for 
the  world  at  large  that  we  have  stumbled  forward  in  our 
empirical  fashion,  blundering  into  wisdom.  The  moral 
glow  known  to  the  virtuous  school-boy  who  has  not  used 
the  "crib"  that  was  ready  to  his  hand,  we  may  allow  our- 
selves to  feel;  and  we  may  hope  for  the  blessing  which 
awaits  all  those  who  have  taught  themselves  anything. 2 

In  conclusion,  a  word  needs  to  be  said  about  the 
equity  of  the  Court  of  Chancery  and  about  statute  law. 
Of  the  former  it  is  only  necessary  to  remark,  by  way 
of  reminder,  that  English  equity  was,  in  essence,  a 
supplement  or  appendix  to  the  common  law,  and  that 
because  of  it  that  law  was  much  better  fitted  to  meet 
the  requirements  of  the  sixteenth  century  and  pass 
successfully  the  crisis  which  it  then  encountered.3 

Statute    law    began   nominally    in   the    thirteenth 

our  law  may  long  remain  unscientific." — Adams,  Civilisation  during 
the  Middle  Ages,  p.  102,  note  i. 

•  Maitland,  English  Law  and  the  Renaissance,  p.  30. 

z  Maitland  in  Traill's  Social  England  i.,  280. 

» See  above,  pp.  213,  214,  219,  note  2. 


The  Judiciary  235 

century.  But  there  had  always  been  law  made  by 
the  central  government,  by  the  king  in  his  Council; 
and  king  and  Council  have  continued,  upon  occasion, 
to  make  it.  In  the  fourteenth  century,  a  new  law- 
making  element,  the  House  of  Commons,  came  into 
existence,  and  statutes,  in  the  proper  sense  of  the 
word,  were  made  by  king  and  Parliament.  Some 
acts  of  the  thirteenth  century  are  traditionally  termed 
statutes  which  are  really  ordinances,  made  by  king 
and  Council;  and  some  had  an  anomalous  origin  and 
are,  strictly  speaking,  neither  ordinances  nor  statutes. 1 
For  several  reasons  Magna  Carta  has  been  regarded 
as  the  beginning  of  England's  written  law  and  holds 
first  place  in  the  statute  book.2  The  informality  of 
earlier  legislation  led  to  its  rapid  absorption  in  the 
mass  of  unwritten  tradition;  the  events  leading  to 
Magna  Carta  and  the  document  itself  were  extra- 
ordinary; by  the  frequency  of  its  confirmation,  it  was 
kept  before  men's  minds  and  its  greatness  seemingly 
enhanced;  and  under  Edward  I.,  a  class  of  secular 

1  On  the  origin  of  statutes  and  their  early  relations  to  ordinances, 
see  below,  pp.  365-372. 

2  The  text  in  the  Statutes  of  the  Realm  is  that  of  the  confirmation 
of  1225.     "The  text  of  the  Great  Charter  issued  the  eleventh  of 
February,  1225  (ninth  year  of  Henry  III.),  is  of  exceptional  im- 
portance.     In  the  first  place  it  is  definitive  and  has  never  been 
modified  (save  in  a  single  point  of  detail)  in  any  of  the  official  con- 
firmations and  copies  which  have  been  published  since.    It  is  the  one 
text  that  has  always  been  appealed  to  either  in  the  courts  or  in  the 
houses  of  Parliament,  or  in  law  books.     In  its  form  it  approaches 
closely  the  redactions  of  1216  and  1217,  and  therefore  differs  much 
from  the  act  of  1215.     The  Charter  of  the  Forest  was  renewed  and 
confirmed  at  the  same  time.     They  are  now  the  first  statutes  of 
the  kingdom  of  England,  the  corner-stone  of  its  written  constitu- 
tion."— Translated  from  Bdmont,  Chartes  des  Libertes  Anglaisest 
pp.  xxix.,  xxx. 


236        Period  of  Constitution  Making 

lawyers  began  to  be  interested  in  England's  legal 
history.  Yet  the  Great  Charter  is  not  a  statute.  It 
is  largely  a  written  amplification  of  the  king's  feudal 
contract  with  his  tenants-in-chief ;  this  is  its  funda- 
mental element.  It  contains  also  sundry  semi-feudal 
or  non-feudal  grants  to  other  classes  of  people,  and 
there  are  elements  of  compromise  and  bargain.  It 
had  immediate  ends  in  view  and  aimed  at  restoring  the 
customary  law.  It  did  not  create  new  law,  but  in 
later  years  many  of  its  clauses,  often  misunderstood, 
had  a  profound  influence  upon  legislation. 

Two  acts  of  Henry  III.'s  reign  have  been  called 
statutes:  the  Statute  of  Merton,  1236,  and  the  Statute 
of  Marlborough,  1268;  both  of  these  were  products 
of  king  and  Council.  There  was  still  no  system  of 
keeping  rolls  and  it  was  largely  a  matter  of  chance 
which  acts  were  preserved  and,  of  these,  which  were 
known  as  statutes.  The  term  has  been  quite  generally 
applied  to  the  important  acts  of  Edward  I.'s  reign. 
In  making  some  of  these,  there  was  concerned  one  or 
other  of  the  new  elements  which,  with  the  evolving 
House  of  Lords,  later  formed  Parliament.  It  was  a 
transition  period,  and  it  is  hard  to  say  whether  or  not 
there  was  a  new  form  of  legislation.  Be  this  as  it 
may,  the  statutes  of  Edward  L,  the  written  laws  made 
by  the  central  government,  have  borne  a  most  im- 
portant and  special  relation  to  the  common  law. 
Coming  just  at  the  end  of  that  law's  rapid  extension 
through  new  writs,  they  formed  a  new  starting  point 
and  laid  down  principles,  upon  which,  with  but  little 
conscious  creation,  much  new  law  was  based  and 
elaborated.  Especially  was  this  the  case  with  land 
law.  Such  statutes  as  Mortmain,  De  Donis  Con- 


The  Judiciary  237 

ditionalibus,  and  Quia  Emptores1  were  fundamental.2 
But  this  great  legislative  reign  was  exceptional ;  in  the 
two  following  centuries,  the  common  law  was  left 
to  elaborate  itself,  little  important  supplemental 
material  being  furnished  it  by  Parliament.  In  the 
Tudor  period,  important  legislation  began  again  and 
it  has  since  steadily  increased  in  quantity.  Hence 
it  might  seem  that  all  law-making  power  would  ulti- 
mately pass  to  Parliament  and  that  the  independence 
of  the  judicial  system,  with  its  self-developing  body 
of  law,  would  cease.  But  this  has  not  proved  to  be 
the  case. 

That  the  common  law  has  been  radically  revolutionised 
by  statute  on  some  subjects  in  very  recent  times,  as,  for 
example,  in  real  estate  law,  is  not  an  evidence  of  the  decline 
of  this  self-developing  power.  It  is  rather  due  to  the  rapid 
and  revolutionary  change  in  society  itself,  which  demands 
equally  rapid  and  revolutionary  change  in  the  law  to 
accompany  it.  The  statutes  themselves  are  subjected 
at  once  to  the  ordinary  process  of  common-law  develop- 
ment in  the  interpretation  and  application  of  them  made 
by  the  courts.3 

1  These  are  also  known  as  De  Religiosis,  Westminster  the  Second, 
and  Westminster  the  Third.      See  A.  and  S.,  documents  40,  42,  45. 

2  "Blackstone.in  order  that  he  might  expound  the   working  of 
the  law  in  his  own  day  in  an  intelligible  fashion,  was  forced  at  every 
turn  to  take  back  his  readers  to  the  middle  ages,  and  even  now, 
after  all  our  reforms,  our  courts  are  still  from  time  to   time  com- 
pelled to  construe  statutes  of  Edward  I.'s  day,  and  were  Parliament 
to  repeal  some  of  those  statutes  and  provide  no  substitute,  the 
whole  edifice  of  our  land  law  would  fall  down  with  a  crash." — P. 
and   M.   i.,  xxxiv. 

»  Adams,  Civilisation  during  the  Middle  Ages,  p.  101,  note  i.  "  In 
the  United  States  the  existence  of  a  written  constitution  as  funda- 
mental law  has  led  to  a  most  important  and  valuable  extension  of 
this  principle  in  the  power  which  the  courts  have  assumed,  without 


238        Period  of  Constitution  Making 

Thus  has  England's  common  law — common  law 
(in  the  narrower  sense) ,  equity,  and  statutes — remained 
incomplete  and  unscientific,  but  alive  and  growing; 
not  a  ready-made  system  brought  in  from  outside  and 
imposed  upon  the  people,  but  made  by  the  people 
and  administered  by  them.  The  common  law  has  been 
a  potent  ally  of  constitutional  government. 

5.  Relations  of  the  State  Courts  and  the  Church 
Courts. — In  the  later  middle  ages  in  all  the  countries 
of  western  Europe,  lay  jurisdiction  was  more  or  less 
invaded  by  that  of  the  church. 1  The  discussion  of  the 
English  court  system  cannot  be  concluded  without 
notice  of  the  causes  and  extent  of  this  invasion  in 
England  and  its  bearing  upon  the  effectiveness  of  the 
judiciary.  In  the  Anglo-Saxon  period,  there  had 
been  no  such  invasion;  this  was  because  England  was 
not  touched  by  the  increased  church  unity  and  influence 

express  sanction,  to  declare  a  law  regularly  passed  by  the  national 
legislature  unconstitutional  and  therefore  null  and  void." — Ibid.,  p. 
102. 

1 ' '  Starting  from  the  words  of  the  apostle  against  going  to  law 
before  unbelievers,  growing  at  first  as  a  process  of  voluntary  ar- 
bitration within  the  Church,  adding  a  criminal  side  with  the  growth 
of  disciplinary  powers  over  clergy  and  members,  and  greatly  stimu- 
lated and  widened  by  the  legislation  of  the  early  Christian 
emperors,  a  body  of  law  and  a  judicial  organisation  had  been  devel- 
oped by  the  Church  which  rivalled  that  of  the  State  in  its  own 
field  and  surpassed  it  in  scientific  form  and  content." — Adams, 
The  History  of  England  (1066-1216),  pp.  278,  279.  It  will  be  use- 
ful, in  this  discussion,  to  keep  in  mind  that  the  church  drew  cases 
to  its  courts  upon  two  general  grounds:  something  clerical  about 
the  parties  to  a  suit,  or  something  clerical  about  the  suit  itself. 
Now  clerical  persons  might  do  very  unclerical  deeds  and  uncler- 
ical  persons  could  litigate  few  causes  in  which  ingenuity  might 
not  discover  some  trace  of  the  clerical.  With  this  double  hold, 
there  was  opened  up  before  the  church  a  jurisdictional  vista  practi- 
cally without  end. 


The  Judiciary  239 

resulting  from  the  Carolingian  patronage  and  the 
pretensions  of  the  forged  Decretals.  Criminous  clerks 
were  tried  in  the  popular  courts;  litigation  between 
clerks  and  between  clerks  and  laymen  and  the  en- 
forcement of  many  of  the  laymen's  ecclesiastical 
obligations  found  place  there  also.  Only  for  holding 
clerks  to  their  clerical  duties,  did  anything  in  the 
nature  of  an  ecclesiastical  court  exist,  although  there 
seems  to  have  been  an  occasional  attempt  to  close 
civil  differences  between  clerks  by  a  kind  of  extra- 
judicial  arbitration. 

It  has  been  seen  how,  by  the  Conquest,  England 
was  brought  into  the  current  of  continental  influence, 
and  how  this  immediately  showed  itself  in  the  church, 
checked  only  by  the  Conqueror's  will.1  The  most 
striking  of  the  early  manifestations  of  that  influence 
was  the  so-called  separation  of  the  lay  and  ecclesi- 
astical courts.  At  some  time  between  1070  and  1076, 
William  ordained: 

.  that  no  bishop  nor  archdeacon  do  hereafter  hold 
pleas  of  episcopal  laws  in  the  Hundred,  nor  bring  a  cause 
to  the  judgment  of  secular  men  which  concerns  the  rule  of 
souls.  But  whoever  shall  be  impleaded  by  the  episcopal 
laws  for  any  cause  or  crime,  let  him  come  to  the  place 
which  the  bishop  shall  choose  and  name  for  this  purpose, 
and  there  answer  for  his  cause  or  crime,  and  not  according 
to  the  Hundred,  but  according  to  the  canons  and  episcopal 
laws,  and  let  him  do  right  to  God  and  his  bishop.  But  if 
anyone,  being  lifted  up  with  pride,  refuse  to  come  to  the 
bishop's  court,  let  him  be  summoned  three  several  times, 
and  if  by  this  means,  even,  he  come  not  to  obedience,  let 
the  authority  of  the  king  or  sheriff  be  exerted ;  and  he  who 
refuses  to  come  to  the  bishop's  judgment  shall  make  good 

»  See  Part  II.,  §  II.,  6. 


240        Period  of  Constitution  Making 

the  bishop's  law  for  every  summons.  This  too  I  absolute!} 
forbid  that  any  sheriff,  reeve  or  king's  minister,  or  any 
other  layman,  do  in  any  wise  concern  himself  with  the 
laws  which  belong  to  the  bishop,  or  bring  another  man  to 
judgment  save  in  the  bishop's  court.  And  let  judgment 
nowhere  be  undergone  but  in  the  bishop's  see  or  in  that 
place  which  the  bishop  appoints  for  this  purpose. 1 

This  shows,  first,  that  laymen,  as  well  as  clergy, 
were  now  to  be  tried  before  church  courts  for  breaches 
of  church  law;  second,  that  laymen  were  forbidden  to 
concern  themselves  with  the  administration  of  church 
law  or,  for  an  offence  against  it,  to  bring  any  one  to  a 
court  other  than  the  bishop's;  but  that,  third,  the 
authority  of  the  king  might  be  exerted  to  enforce  the 
bishop's  summons.  William  assumed  that  it  was 
clear  to  every  one  what  breaches  of  church  law  were. 
There  is  certainly  no  intimation  from  his  reign  of  "any 
immunity  of  clerks  from  secular  jurisdiction  or  tem- 
poral punishment."  Simply,  the  old  local  courts  no 
longer  dealt  with  laymen's  failures  to  meet  their 
church  obligations. 

Between  the  time  of  this  ordinance  and  the  famous 
controversy  between  Henry  II.  and  Becket,  the  juris- 
dictional  claims  of  the  church  made  a  great  advance. 
It  was  then  that  there  took  place  in  England  what  has 
been  aptly  termed  the  "reception  of  Gregorianism. " 
This  might  easily  be  taken  to  mean  too  much,  but  the 
English  church  did  become  deeply  and  lastingly  af- 
fected by  the  principles  of  the  great  pope;  and  such 
a  change  in  so  large  and  important  an  element  of  the 
population  necessarily  touched  the  government,  and 
that  most  markedly  in  the  judiciary.  The  unknown 

1  A.  and  S.,  document  i. 


The  Judiciary  241 

author  of  the  Leges  Henrici  Primi,  writing  under 
Henry  L,  said  that  all  ordained  clergy  "are  to  be 
accused  before  their  prelates  for  all  crimes,  both  the 
greatest  and  the  lesser."  This  writer  borrowed  so 
much  from  continental  principle  and  practice  that  it 
is  difficult  to  tell  how  far  this  reflects  the  English 
custom  of  his  time.  But  there  is  reason  to  believe 
that  it  is  not  entirely  contrary  to  fact,  and  it  may 
safely  be  concluded  that  there  was  some  attempt,  in 
Henry  I.'s  reign,  to  accuse  and  try  criminous  clerks 
in  the  bishop's  court.  William's  ordinance  said  no- 
thing about  criminous  clerks,  and  he  unquestionably 
intended,  at  the  time  of  its  issue,  that  they  should  be 
dealt  with  as  they  always  had  been  in  England;  for 
it  was  manifestly  concerned  with  changing  the  Anglo- 
Saxon  and  not  the  Norman  practice.  But  here  it 
must  be  noticed  that  there  were  three  distinguishable 
parts  in  the  criminal  procedure:  the  accusation,  the 
trial,  and  the  punishment.  William  had  come  from 
the  continent  and  dealt  with  prelates  who,  for  the 
most  part,  had  had  a  continental  training;  and,  apart 
from  what  this  particular  ordinance  said  or  did  not 
say,  Maitland  thinks  "it  very  possible  that  Lanfranc 
would  have  demanded  and  the  Conqueror  conceded 
the  general  principle  that  the  trial  of  the  accused 
clerk  must  take  place  before  the  spiritual  forum"; 
but  doubts  "whether  more  than  this  would  have  been 
conceded  or  even  demanded,  whether  as  much  as  this 
could  always  be  obtained."1  If  the  accusation  were 
in  a  lay  court,  a  sort  of  possession  of  the  case  was  thus 
obtained  which  made  possible  a  share  in  the  punish- 
ment. The  church  could  not  pronounce  a  judgment 
>  P.  and  M.  i.,  454. 


242        Period  of  Constitution  Making 

which  involved  loss  of  life  or  limb ;  hence  it  was  vitally 
important  to  the  peace  of  the  country  that  the  civil 
authority  be  able  to  supplement,  in  the  case  of  heinous 
crimes,  the  church's  degradation  of  the  clerk.  It  is 
significant  that  no  one  ever  denied  Henry  IL's  claim 
that  the  procedure  he  advocated  was  the  actual 
practice  in  the  time  of  his  grandfather.1  We  may 
venture,  then,  to  sum  up  the  competence  of  the  church 
courts  during  the  first  three  Norman  reigns.  They 
had  jurisdiction  over  all  clergy  and  laymen  in  matters 
falling  within  the  domain  of  the  canon  law,  and,  by 
their  interpretation,  that  domain  increased  constantly 
and  many  civil  cases  were  being  drawn  from  the  lay 
courts.  They  had  the  trial  of  ordained  clergy  who 
had  been  accused  of  crimes  in  the  lay  courts,  and,  in 
cases  where  a  blood  judgment  would  have  been  ren- 
dered in  a  lay  court,  they  turned  the  degraded  clerk 
over  to  the  secular  arm  for  further  punishment.  But 
there  must  have  been  many  exceptions  to  this  rule, 
if  one  may  venture  to  call  it  such ;  there  were  probably 
instances  in  which  criminous  clerks  had  accusation, 
trial,  and  sole  punishment  in  the  church  court,  and  it 
is  certain  that  in  some  cases  the  church  did  not  even 
get  the  trial. 

In  the  reign  of  Stephen,  the  church  courts  made 
their  highest  pretensions  and  attained  their  widest 
jurisdiction.  Stephen's  temperament  and  the  circum- 
stances of  his  succession  led  him,  early  in  his  reign, 
to  make  broad  and  unwise  promises  to  various  in- 
dividuals and  classes.  His  second  charter,  which  he 
felt  under  the  necessity  of  granting  the  spring  after 
his  coronation,  was  largely  occupied  with  concessions 

»  See  below,  pp.  245,  247. 


The  Judiciary  243 

to  the  clergy.  He  gave  them  everything  they  wanted, 
and  along  a  variety  of  lines.  "The  English  Church 
would  have  reached  at  a  stroke  a  nearer  realisation 
of  the  full  programme  of  the  Hildebrandine  reform 
than  all  the  struggles  of  nearly  a  century  had  yet 
secured  in  any  other  land,  if  the  king  had  kept  his 
promises. "  *  In  the  matter  of  ecclesiastical  juris- 
diction, he  said:  "I  permit  and  confirm  justice  and 
power  over  ecclesiastical  persons  and  all  clerks  and 
their  effects,  and  the  distribution  of  ecclesiastical 
goods  to  be  in  the  hands  of  the  bishops. ' ' 2  This  cer- 
tainly brought  the  accusation  of  the  clerk,  as  well  as  the 
trial,  within  the  church  court  and  was  a  grant  of  civil 
jurisdiction  in  all  that  pertained  to  church  property. 

But  Stephen  did  not  keep  his  promises.  He  strug- 
gled very  stoutly  against  the  concession  concerning 
criminous  clerks,  and  it  is  known  that  there  wrere 
instances  in  his  rei^n  in  which  criminous  clerks  were 
accused,  tried,  and  punished  in  the  king's  court. 
On  the  whole,  however,  the  church  was  far  more 
successful  in  the  contest  than  the  king.  In  civil 
jurisdiction,  the  church  went  far  beyond  what  was 
contemplated  in  the  charter,  for  such  jurisdiction  was 
gained  "not  only  in  the  purely  spiritual  causes,  as 
for  example  matters  relating  to  matrimony  and  con- 
tentions over  land  held  in  frankalmoin,  but  also  the 
investigation  as  to  whether  a  piece  of  land  pertained 
to  frankalmoin,  cases  concerning  wills,  tithes,  advowson 
or  presentation  to  churches,  and  contracts  secured  by 
an  oath."3 

1  Adams,  The  History  of  England  (1066-1216),  p.  201. 

*A.  and  S.,  p.  8. 

3  Translated  from  Bohmer,  Kirche  und  Staat,  pp.  399,  400. 


244        Period  of  Constitution  Making 

The  great  work  of  Gratian,  known  as  the  Decretum, 
appeared  about  1142.  This  was  a  fruit  of  the  twelfth- 
century  revival  in  the  study  of  Roman  and  canon 
law.  Gratian  was  a  monk  of  Bologna,  the  centre 
of  the  revival,  and  was  a  teacher  in  the  law  school  there. 
Church  law  had  been  very  disorderly  and  complex, 
and  his  was  the  first  important  attempt  to  codify  it. 
Such  codification  and  clarifying  as  Gratian  gave  it 
could  not  but  increase  its  availability,  heighten  its 
authority,  and  stimulate  the  already  expanding  church 
courts.  The  Decretum  came  at  a  time  when  England 
was  especially  susceptible  to  its  influence.  So  many 
things  were  working  to  the  same  end  that  England, 
long  exceptional  in  the  nationality  of  her  church  and 
her  independence  of  the  pope,  was  no  whit  behind 
France  or  Italy  in  her  progress  towards  the  Gregorian 
ideal. 

When  the  great  ruler  and  lawyer,  Henry  II.,  came 
to  the  throne,  he  had  to  face  the  results  of  nineteen 
years  of  weak  rule,  many  of  them  years  of  sheer  anarchy. 
It  is  only  to  be  noticed  here  how  he  dealt  with  the 
advancing  jurisdictional  claims  of  the  church,  which 
Stephen's  reign  had  so  favoured.  Four  considerations 
go  far  to  account  for  Henry's  action  when,  in  1163,  he 
was  at  last  free  to  look  into  England's  internal  abuses. 
First,  he  found  criminous  clerks  no  small  element  in 
the  horde  of  unpunished  criminals  who  were  making 
governmental  progress  impossible;  "it  was  said  that 
a  hundred  murders  had  been  perpetrated  by  clerks 
during  Henry's  reign  before  the  king  took  action."  1 
Secondly,  he  was  conscious  of  the  serious  crippling  of 
government  that  must  ensue  if  men  belonging  to  an 

•  P.  and  M.  i,  454,  note  i. 


The  Judiciary  245 

organisation  so  independent  of,  and  out  of  harmony 
with,  the  state  could  control  such  a  vast  civil  jurisdic- 
tion. Thirdly,  he  genuinely  appreciated  the  good  gov- 
ernment of  his  grandfather's  time,  and  had  a  settled 
purpose  to  make  it  his  model  in  his  work  of  restora- 
tion. Fourthly,  the  ideas  of  his  time  were  not  without 
their  influence  upon  him  and  he  had  a  great  respect  for 
established  law;  he  probably  respected  Gratian's 
Decretum;  at  any  rate,  as  his  struggle  with  the  church 
drew  on,  he  may  have  seen  the  strategic  advantage 
of  being  able  to  claim  harmony  with  it. 

Some  flagrant  miscarriages  of  justice  with  respect 
to  criminous  clerks  were  the  immediate  cause  of 
Henry's  action.  His  preliminary  negotiations  with 
Archbishop  Thomas  and  the  bishops  indicate  that  the 
practice  of  inflicting  lay  punishment  upon  the  con- 
victed and  degraded  clerk  had  largely  lapsed  under 
Stephen,  for  he  received  very  unsatisfactory  replies 
when  he  demanded  the  attitude  of  the  clergy  upon 
this  point.  Becket  took  an  extreme  position,  and 
must  have  seemed  to  Henry  to  be  distinctly  heading 
a  state  within  the  state.  Late  in  1163,  Henry  in- 
structed some  of  the  elder  barons  of  his  Curia,  who 
supposedly  knew  the  customs  of  his  grandfather's 
time,  to  draw  up  a  statement  of  such  customs  as  bore 
upon  his  controversy  with  the  church.  The  result 
was  a  document  of  sixteen  articles,  presented  at  a 
meeting  of  the  Curia  Regis  at  Clarendon  in  January, 
1164.  It  is  known  as  the  Constitutions  of  Clarendon.1 
While  not  strictly  confined  to  the  points  of  judicial 
controversy  between  church  and  state,  those  points 
are  the  most  prominent  in  the  document.  In  the 

»  A.  and  S.,  document  13. 


246        Period  of  Constitution  Making 

third  article,  is  a  statement  of  the  most  crucial  matter, 
the  procedure  in  the  case  of  criminous  clerks.  The 
language  is  brief  and  somewhat  dubious,  but  Maitland's 
interpretation  is  now  generally  accepted  and  seems 
conclusive : 

A  clerk  who  is  suspected  of  a  crime  is  to  be  brought 
before  the  temporal  court  and  accused  there;  unless  he 
will  admit  the  truth  of  the  charge,  he  must  in  formal  terms 
plead  his  innocence;  this  done,  he  will  be  sent  to  the  ecclesi- 
astical court  for  trial;  if  found  guilty  he  is  to  be  deposed 
from  his  orders  and  brought  back  to  the  temporal  court; 
royal  officers  will  have  been  present  at  his  trial  and  will 
see  that  he  does  not  make  his  escape;  when  they  have 
brought  him  back  to  the  temporal  court,  he  will  then — 
perhaps  without  any  further  trial,  but  this  is  not  clear — 
be  sentenced  to  the  layman's  punishment,  to  death  or 
mutilation. 1 

Becket  objected  to  three  parts  of  this  procedure: 
the  preliminary  hearing  in  the  lay  court,  the  sending 
of  the  royal  officer  into  the  church  court,  the  infliction 
of  the  layman's  punishment  upon  the  deposed  clerk. 
The  first  two  of  these  were  clearly  contrary  to  the 
Decretum;  but  Henry  felt  that  he  had  conceded  all 
that  he  could  when  he  allowed  the  canonical  trial, 
and  seemed  disposed  to  emphasise  the  fact  that  he  was 
not  contradicting  the  canon  law.  These  were  all  im- 
portant points,  but  the  question  of  punishment  was 
vital.  Becket  rested  his  objection  upon  the  principle 
that  a  man  should  not  be  punished  twice  for  the  same 
offence.  But  the  Decretum  does  not  seem  to  con- 

»  P.  and  M.  i.,  448.  For  a  full  discussion,  see  Maitland,  Roman 
Canon  Law  in  the  Church  of  England,  essav  iv. 


The  Judiciary  247 

template  the  case  under  consideration  in  connection 
with  that  principle,  and  Becket  was  quite  original 
in  his  application  of  it  and  in  the  prominence  which 
he  gave  it.  He  argued  that  degradation  was  the 
extreme  punishment  of  the  church  and  was  sufficient 
for  the  first  offence;  if  the  man  committed  a  second 
crime,  he  did  it  as  a  layman  and  would  receive  the 
layman's  punishment.  Henry  regarded  it  as  sub- 
versive of  law  and  order  to  allow  every  clerk  to  commit 
one  crime  for  which  there  was  no  punishment  ade- 
quately deterrent.  There  was  small  chance  of  their 
coming  to  a  satisfactory  understanding.  Henry's 
position  was  substantially  correct  historically;  it 
represented  the  practice  of  his  grandfather's  time. 
Becket's  position  was  correct  canonically,  with  the 
probable  exception  of  the  matter  of  punishment. 
Henry's  position  was  certainly  in  harmony  with  the 
fundamental  requirements  of  effective  government. 

In  the  Constitutions  of  Clarendon,  Henry  not  only 
attacked  the  church's  claim  to  exclusive  jurisdiction 
over  clerks,  but  also  its  claim  to  some  important  civil 
actions.  In  the  first  article,  he  demanded  all  advow- 
son  cases.  In  the  ninth  article  he  drew  into  his  court  a 
preliminary  procedure  in  cases  where  there  was  litiga- 
tion over  land  between  clergy  and  laymen,  and  this 
procedure  later  grew  into  an  independent  assize.  1 
In  article  fifteen,  he  declared  that  "pleas  of  debt  due 
under  pledge  of  faith  or  without  pledge  of  faith  are 
to  be  in  the  king's  justice." 

Henry  was  put  in  the  wrong  by  the  murder  of  Becket 
and  was  obliged  to  renounce,  or  seem  to  renounce,  what 
he  had  claimed  in  the  Constitutions.  A  chronicler 

1  See  above,  p.  132. 


248        Period  of  Constitution  Making 

thus  recorded  this  abjuration:  "He  also  swore  that 
those  customs  inimical  to  the  churches  of  his  land 
which  had  been  brought  in  in  his  time  he  would 
utterly  do  away  with."  l  Considering  his  former  claim 
that  these  customs  were  all  those  of  his  grandfather's 
time,  this  does  not  appear  to  have  been  a  very  thorough 
renunciation. 

From  Henry's  time,  there  was  a  decline  from  the 
Constitutions  of  Clarendon  in  the  royal  control  over 
the  trial  and  punishment  of  criminous  clerks;  while 
in  civil  jurisdiction,  the  kings  not  only  kept  in  their 
courts  what  was  then  claimed,  but  continued  to  draw 
business  away  from  the  church  courts.  On  the  latter 
subject,  nothing  further  needs  to  be  said  here,  for  at 
an  early  date  the  civil  jurisdiction  of  the  church  ceased 
to  seriously  hamper  that  of  the  state.2  But  notice 
must  be  taken  of  the  immunity  of  the  clergy  from  lay 
jurisdiction,  for  it  proved  a  serious  breach  in  the 
efficiency  of  the  English  government  until  the  Refor- 
mation. Becket  was  murdered  in  1170  and  Henry  wras 
reconciled  to  the  church,  through  the  renunciation 
noted  above  and  other  engagements  into  which  he 
entered,  in  1172.  After  the  murder,  it  was  impossible 

1  Gesta  Regis  Henrici  Secundi  Benedicti  Abbatis  i.,  33. 

'  "  ...  still  the  sphere  that  was  left  to  the  canonists 
will  seem  to  our  eyes  very  ample.  It  comprehended  not  only  the 
enforcement  of  ecclesiastical  discipline,  and  the  punishment — by 
spiritual  censure,  and,  in  the  last  resort,  by  excommunication — of 
sins  left  unpunished  by  temporal  law,  but  also  the  whole  topic  of 
marriage  and  divorce,  those  last  dying  wills  and  testaments  which 
were  closely  connected  with  dying  confessions,  and  the  adminis- 
tration of  the  goods  of  intestates.  Why  to  this  day  do  we  couple 
1  Probate '  with  '  Divorce  '  ?  Because  in  the  Middle  Ages  both  of 
these  matters  belonged  to  'the  courts  Christian.'" — Maitland,  in 
Traill's  Social  England  i.,  283. 


The  Judiciary  249 

for  him  to  enforce  his  claims  over  criminous  clerks; 
the  matter  was  passed  over  in  silence.  In  the  years 
that  followed,  however,  the  clergy  got  into  some  logical 
difficulty  by  having  it  pressed  home  to  them  that  if 
the  clerical  murderer  of  a  layman  could  escape  punish- 
ment by  death,  there  ought  to  be  reciprocation  and 
the  lay  murderer  of  a  clerk  enjoy  the  same  immunity. 
The  fact  that  Becket's  murderers  escaped  punishment 
lent  some  point  and  weight  to  this  argument.  The 
clergy  began  to  feel  uncomfortable,  doubting  whether 
their  own  lives  were  to  be  properly  protected.  This 
situation  made  it  possible  for  Henry,  in  1176,  to  gain 
a  concession ;  but  in  doing  this  he  was  forced  to  a  more 
formal  allowance  of  their  claims  over  criminous  clerks 
than  he  had  yet  made.  A  papal  legate  was  in  England 
at  the  beginning  of  the  year,  and  he  conceded  that 
Henry  could  try  clerks  in  his  own  court  for  forest 
offences;  on  the  other  hand,  he  received  a  letter  from 
Henry  to  the  pope  in  which  the  king  agreed  that  mur- 
derers of  clerks  should  not  be  exempt  from  punishment, 
and  that,  except  for  forest  offences  and  cases  which 
grew  out  of  a  clerk's  holding  a  lay  fee  with  a  lay 
service  attached,  no  clerks  should  be  brought  in  person 
before  his  courts. *  This  concession  may  be  regarded 
as  formally  inaugurating  the  "benefit  of  clergy." 

The  precise  terms  upon  which  the  clergy  enjoyed 
their  immunity  varied  from  age  to  age,  but,  in  general, 
they  became  more  lax.  The  core  of  "  benefit  of  clergy '' 
was  this:  when  an  accusation  was  brought  against  a 
clerk  in  a  lay  court,  his  bishop  might  appear  and  de- 
mand that  he  be  turned  over  to  the  church  court  for 
trial;  bishops  regularly  made  this  demand,  and  there 

1  Adams,  The  History  of  England  (1066-1216),  p.  319. 


250        Period  of  Constitution  Making 

could  be  no  further  punishment  than  the  church  courts 
were  competent  to  inflict. 1  In  the  thirteenth  century, 
the  clerk  who  had  been  arrested  by  the  sheriff  was 
imprisoned  by  the  bishop  until  the  coming  of  the  itiner- 
ant justices,  when  he  actually  appeared  before  them 
and  was  accused.  Late  in  the  century,  after  accusation 
and  transmission  to  the  bishop's  court,  the  justices 
submitted  his  case  to  a  jury  and  obtained  a  verdict. 
This  was  not  his  trial,  but  if  the  verdict  were  guilty  his 
property  with  its  income  was  held  for  the  king  until  his 
fortune  in  the  bishop's  court  were  .known.  But  the 
ecclesiastical  trial  became  a  farce.  Compurgation  was 
still  used,  an  antiquated  form  of  proof  that,  under  the 
changed  conditions,  had  lost  what  little  virtue  it  had 
ever  possessed  as  a  method  of  ascertaining  the  truth.2 
It  was  especially  inept  when  a  clerk  selected  the  com- 
purgators  from  his  own  order.  The  church  might 
inflict  severe  punishments,  as  life  imprisonment;  but 
such  seem  to  have  been  seldom  used. 

There  were  still,  in  the  thirteenth  century,  some 
valuable  limitations  to  benefit  of  clergy:  the  privilege 
had  not  been  extended  to  the  lower  orders  of  the  clergy, 

1  The  strangest  factor  in  the  survival  of  this  practice  in  England 
is  that  it  was  out  of  harmony  with  the  best  authority  in  the  church 
itself.  Maitland  says:  "...  that  opinion,  though  owing  to 
his  (Becket's)  martyrdom  it  was  suffered  to  do  immeasurable  mis- 
chief in  England  by  fostering  crime  and  crippling  justice,  was  never 
consistently  maintained  by  the  canonists;  had  it  been  maintained, 
no  deposed  or  degraded  clerk  would  ever  have  been  handed  over 
to  the  lay  power  as  a  heretic  or  a  forger  of  papal  bulls.  As  a  general 
principle  of  law,  Becket's  theory  about  double  punishment  was 
condemned  by  Innocent  III.;  the  decree  which  condemns  it  is  to 
this  day  part  of  the  statute  law  of  the  Catholic  church." — P.  and 
M.  i.,  455- 

7  Compurgation  was  not  prohibited  by  statute  until  1833. — 
Traill,  Social  England  i.,  280, 


The  Judiciary  251 

where  most  clerical  crime  lay,  but  was  confined  to 
ordained  clergy,  monks,  and  nuns;  the  worst  forms 
of  treason  were  not  within  its  operation ;  and,  in  the 
lighter  offences,  the  misdemeanours,  clerks  were  dealt 
with  as  laymen.  But  before  the  end  of  Edward  III.'s 
reign,  benefit  of  clergy  had  acquired  most  of  the  well- 
known  characteristics  which  have  made  it  opprobrious : 
its  extension  to  the  lower  orders  of  clergy,  the  right  of 
the  clerk  to  prove  his  clergy  even  if  his  bishop  refused 
to  demand  him,  and  the  farcical  method  of  proof  by 
reading. 1 

One  of  the  worst  evils  of  the  later  Middle  Ages  was  this 
"benefit  of  clergy."  The  king's  justices,  who  never  loved 
it,  at  length  reduced  it  to  an  illogical  absurdity.  They 
would  not  be  at  pains  to  require  any  real  proof  of  a 
prisoner's  sacred  character.  If  he  could  read  a  line  in  a 
book  this  would  do;  indeed,  it  is  even  said  that  the  same 
verse  of  the  Psalms  was  set  before  the  eyes  of  every  prisoner, 
so  that  even  the  illiterate  might  escape  if  he  could  repeat 
by  heart  those  saving  words.  Criminal  law  had  been 
rough  and  rude,  and  sometimes  cruel;  it  had  used  the 
gallows  too  readily;  it  had  punished  with  death  thefts 
which,  owing  to  a  great  fall  in  the  value  of  money,  were 
becoming  petty  thefts.  Still  cruelty  in  such  matters  is 
better  than  caprice,  and  the  "benefit  of  clergy"  had  made 
the  law  capricious  without  making  it  less  cruel.2 

The  state  did  occasionally  break  through  the  privilege 
in  specially  flagrant  cases,  and  was  even  assisted  by 
the  church  in  so  doing;  but  with  slight  exception  the 
abuse  remained  as  described  until  two  acts,  one  in 
the  reign  of  Henry  VII.  and  the  other  in  the  reign  of 

1  Reeves,  History  of  the  English  Law  ii.,  324-326;    428-430. 
3  Maitland,  in  Train's  Social  England  i.,  298. 


252        Period  of  Constitution  Making 

Henry  VIII.,  did  much  to  abolish  it.     It  was  long 
after  these  acts  before  it  entirely  ceased.1 

1  "But  it  lingered  on  until  comparatively  recent  times,  and  even 
in  cases  where  it  was  withdrawn  from  all  others  who  had  hitherto 
claimed  it,  an  Act  of  Edward  VI.  saved  it  for  'a  Lord  or  Peer  of 
the  Realm  though  he  cannot  read.'  Readers  of  Esmond  will  re- 
member the  escape  of  Lord  Mohun  by  this  means  from  the  penalties 
of  his  successful  duel  with  Lord  Castlewood." — Medley,  English 
Constitutional  History,  pp.  567,  568. 


SECTION  II 

THE    EXECUTIVE 

i.  The  Genesis  of  Limited  Monarchy. — After  William 
I.  had  conquered  England  and  the  early  attempts  of 
the  English  to  throw  off  the  yoke  had  been  put  down 
and  enough  time  had  passed  to  bring  out  the  nature 
of  his  government,  certain  of  his  subjects  began  to  show 
much  resentment  and  disappointment.  In  one  sense, 
they  were  not  his  subjects ;  they  were  his  vassals.  They 
were  bound  to  him  by  the  private  tie,  the  feudal  con- 
tract, rather  than  the  public  tie  which  relates  the 
subject  to  the  state.  Indeed,  at  that  time  there  was 
little  of  this  public  relation  in  its  purity.  The  men 
of  the  great  servile  class  were  under  various  obligations 
to  their  lords  which  made  it  impossible  for  them  to 
hold  any  full  and  free  relation  of  subject  to  a  sovereign 
state;  the  vassals  of  the  king's  vassals  had  private 
contracts  with  their  lords  which  made  their  relations 
to  the  king  only  mediate.  The  object  of  the  Salisbury 
oath  was  to  bring  all  freemen  under  immediate  and 
supreme  obligation  to  the  sovereign,  but  it  could  only 
accomplish  its  purpose  slowly  and  partially.  The 
non-noble  freemen  were  the  only  people  who  approx- 
imated to  our  conception  of  subjects.  But  they  were 
not  the  ones  to  resent  William's  government.  Free 
as  they  were,  they  were  more  concerned  with  the  rule 

253 


254        Period  of  Constitution  Making 

of  their  own  Norman  or  Saxon  overlords,  who,  not- 
withstanding the  definite  terms  of  their  service,  might 
oppress  them  in  many  ways. 

It  was  not,  however,  because  the  classes  other  than 
tenants-in-chief  were  less  closely  related  to  the  king 
that  they  did  not  resent  his  severity;  it  was  because 
there  was,  for  them,  no  source  in  law  or  precedent 
whence  the  idea  of  resistance  could  come.  The  German 
barbarians  had  found  no  such  thing  in  the  Roman 
empire;  there  power  was  all  on  the  side  of  the  state 
and  obligation  all  on  the  side  of  the  individual.  It 
was  essentially  the  same  in  the  empire  of  Charlemagne ; 
and  that  empire  had  fallen  to  pieces,  not  because  of 
any  constitutional  attack  upon  it,  but  because  the 
primitive  emperors  and  subjects  alike  had  been  unable 
to  maintain  their  Roman  imitation.  In  the  ruins 
of  this  empire,  there  grew  among  the  upper  classes  a 
set  of  relations,  termed  feudal,  in  which  lord  and  vassal 
were  bound  to  each  other  by  a  contract  freely  entered 
into  and  entailing  mutual  obligations.  If  one  of  the 
parties  to  the  contract  broke  it,  the  other  might  attempt 
to  force  him  to  keep  it  or  might  regard  the  relation  as 
entirely  dissolved.1 

William  the  Conqueror  did  not  turn  out  to  be  the 
kind  of  king  that  his  vassals  had  expected;  he  did 
not  treat  them  as  the  French  kings  treated  their  vassals. 
He  did  not  consciously  modify  feudalism  when  he 
came  into  England  or  deliberately  undertake  to  weaken 
his  vassals.  But  he  was  as  strict  and  stern  a  king  in 
England  as  he  had  been  duke  in  Normandy.  His 
great  followers  seem  not  to  have  expected  this;  they 

1  The  institutional  source  of  the  contract  element  in  feudalism 
was  the  Roman  patrocinium.  See  above,  pp.  75,  85. 


The  Executive  255 

thought  he  would  be  like  other  kings  and  they  like 
other  kings'  vassals.  He  found  in  the  English  sheriff  a 
means  to  accomplish  things  in  the  localities  and  he 
instructed  him  to  hold  pleas  involving  royal  interests 
even  within  the  holdings  of  great  lords.  The  profits 
of  this  jurisdiction  went  to  the  king  and  lessened  the 
judicial  income  of  the  vassal.  Peace  was  maintained, 
and  the  rights  of  private  warfare,  which  surely,  it  was 
thought,  belonged  to  a  king's  vassals  even  if  not  to  a 
duke's,  were  rigidly  suppressed.  Many  of  William's 
vassals  felt  that  what  he  was  doing  amounted  to  a 
breach  of  his  contract.  They  rose  against  him,  and, 
dispairing  of  making  him  recognise  their  rights,  they 
purposed  to  break  all  relations  with  him  and  drive 
him  from  the  land.  Thus  occurred,  in  1075,  the  first 
true  feudal  revolt  in  England.  It  was  a  revolt  not 
against  William  as  king,  but  as  suzerain. 

When  William  II.  came  to  the  throne,  he  not  un- 
naturally had  a  revolt  of  these  barons  on  his  hands 
at  the  very  outset.  It  is  interesting  that  he  began 
to  make  verbal  promises  of  good  laws,  especially  a 
mitigation  of  the  forest  laws.  He  did  this  in  order 
to  gain  the  support  of  the  English  and  of  as  many 
Normans  as  possible.  But  during  his  reign,  with  the 
help  of  Flambard,  he  broke  his  feudal  contract  in  more 
specific  and  exasperating  ways  than  his  father.  Feudal 
dues  and  the  rights  of  overlords  with  respect  to  mar- 
riage, wardship,  and  other  feudal  incidents  were  be- 
coming fixed  by  custom,  and  hence  were  covered  by 
the  feudal  contract  without  specific  mention.  These 
he  abused  beyond  measure.  When,  in  1093,  William 
believed  that  he  was  about  to  die,  he  made  general, 
oral  promises  of  reform ;  and  it  is  of  special  significance 


256        Period  of  Constitution  Making 

that  he  cancelled  some  debts  due  him  and  released 
prisoners  by  written  orders.  The  act  approached  a 
written  acknowledgment  that  others  had  rights  as 
against  him. 

Henry  I.,  in  his  famous  coronation  charter,  made 
very  definite  promises  to  correct  specifically  men- 
tioned feudal  abuses  of  his  brother.  In  the  reaction 
bound  to  follow  his  brother's  reign,  he  thus  empha- 
sised, either  through  necessity  or  policy,  his  contractual 
relation  to  his  tenants-in-chief.  But  throughout  his 
reign,  he  was  strong  enough  to  break  his  promises  very 
freely.  But  the  very  regularity  of  his  tyranny,  while 
rather  extending  the  powers  of  the  crown,  tended  also 
to  strengthen  the  contract  idea ;  he  was  not  capricious ; 
with  respect  to  a  portion  of  his  population,  he  was 
acting  upon  a  recognised  set  of  principles.1 

When  Stephen  came  to  the  throne,  he  felt  it  neces- 
sary to  strengthen  his  doubtful  claim  by  confirming 
his  uncle's  charter.  He  merely  confirmed  ' '  the  liberties 
and  good  laws,"  with  no  mention  of  their  having  been 
abused  and  with  no  specific  points  of  correction.2  A 
few  months  later,  he  found  it  necessary  to  gain  the 
support  of  the  church  by  a  charter  which  made  very 
sweeping  concessions.3  The  church  included  a  class 
necessarily  in  close,  but  often  ill-defined,  relations 
with  the  king.  Stephen  limited  his  power  by  allowing 
the  church  a  greater  independence  than  it  had  ever 
had  before.  Throughout  his  weak  reign,  both  barons 
and  clergy  steadily  gained  power  from  the  crown. 

1  Much  more  was  this  the  case  if  we  accept  the  statement  of 
Stubbs  that  the  coronation  charter  was  "probably  reissued  from 
time  to  time  as  he  found  it  necessary  to  appeal  to  the  sympathies 
of  the  people  against  their  common  enemies." — Select  Charters,  p.  99. 

*  A.  and  S.,  document  10.  » Ibid.,  document  1 1. 


The  Executive  257 

Henry  II.,  at  his  coronation,  ignoring  what  had 
happened  in  the  intervening  reign,  confirmed  the  laws 
and  liberties  of  his  grandfather  in  a  general  but  em- 
phatic charter,  and  mentioned  Henry  I.'s  having 
granted  these  in  charter  form.  The  rapid  progress  of 
centralisation  under  this  king,  especially  in  the  founda- 
tion of  the  king's  court  system,  has  been  noted.1  In 
1173,  began  the  last  purely  feudal  revolt  in  England, 
almost  a  hundred  years  after  the  first  one.  An  im- 
portant cause  was  the  king's  invasion  of  what  had 
been  regarded  as  the  jurisdictional  rights  of  his  vassals. 
Again  the  understood  contract  between  lord  and  vassal 
— whose  content  varied  from  age  to  age,  but  was  alway? 
a  reality — had  been  broken,  and  the  barons  made  ai? 
unsuccessful  attempt  to  hold  the  king  to  its  terms. 

By  the  end  of  Richard  I.'s  reign,  one  party  to  the 
contract,  namely,  the  king,  appears  to  have  been  so 
uniformly  successful  that  all  contract  element  was 
likely  to  pass  away,  and  the  king  be  limited  with 
respect  to  no  portion  of  his  population.  From  1066 
to  1199,  there  had  been  but  one  weak  reign;  taking  into 
account  also  the  tremendous  fact  of  the  Conquest 
itself,  one  sees  how  absolute  monarchy  was  being 
attained  in  England  almost  at  a  stride.  Richard  I. 
issued  no  coronation  charter.  The  memory  of  past 
events  was  short  in  the  middle  ages.  Would  Henry  I.'s 
charter  be  forgotten,  and  would  English  kings  grow  so 
all-powerful  as  to  destroy  their  character  as  suzerains 
by  continued,  successful  violation  of  much  that  that 
character  implied?  The  fact  that  feudalism  in  many 
of  its  aspects  was  then  weaning  in  England  looked 
towards  an  affirmative  answer. 

1  See  above,  pp.  125-131. 


258        Period  of  Constitution  Making 

The  issue  was  to  be  settled  in  John's  reign,  but  an 
event  late  in  the  reign  of  Richard  first  demands  atten- 
tion. At  the  end  of  1197,  Richard  commanded  his 
English  vassals  to  unite  in  providing  a  force  of  three 
hundred  knights  to  serve  him  on  the  continent.  This 
was  substantially  an  application  of  the  principle  of 
scutage  which  was  then  coming  into  common  use. 
Scutage  was  the  commutation  into  a  money  payment 
of  a  part  at  least  of  a  vassal's  military  service  in  cases 
where  the  length  or  location  of  the  military  undertak> 
ing  rendered  the  individual  service  of  all  the  vassals 
impossible.  "The  union  of  the  military  tenants  to 
equip  a  smaller  force  than  the  whole  service  due  to 
the  lord,  but  for  a  longer  time  than  the  period  of 
required  feudal  service,  was  not  uncommon."1  The 
constant  necessity  which  the  English  kings  were  under 
of  fighting  upon  the  continent,  while  there  was  little 
need  of  fighting  in  England,  extended  and  made  regular 
the  use  of  the  scutage  principle.  This  particular  de- 
mand of  Richard's  received  a  decided  refusal  from 
the  bishop  of  Lincoln,  a  man  of  the  highest  character. 
His  example  was  followed  not  only  by  many  clergy, 
but  by  laymen.  It  was  stated  that  the  military  tenants 
of  England  were  not  bound  to  render  service  outside 
the  country.  There  was  no  good  feudal  precedent  for 
this  in  England  or  elsewhere;  the  letter  of  the  law  or 
custom  was  on  the  side  of  the  king.  Yet  it  is  not 
surprising  that  such  a  protest  should  have  at  length 
arisen.  The  English  Channel  lay  between  the  king's 
English  and  French  possessions;  England  was  a  natural 
unit.  To  use  the  feudal  contract  for  a  forty-day  per- 
sonal service  as  the  basis  for  making  English  vassals 

'Adams,  History  of  England  (1066-1216),  p.  383. 


The  Executive  259 

regularly  pay  for  soldiers  to  fight  in  Normandy  or 
Aquitaine  seemed  a  breach  of  the  spirit  of  that  con- 
tract—and that,  too,  whether  the  soldiers  were  mer- 
cenaries hired  on  the  continent  or  equipped  knights 
sent  from  England.  It  was  evidently  not  a  constitu- 
tional resistance  to  taxation,  as  has  often  been  repre- 
sented. There  was,  properly  speaking,  no  taxation 
and  no  idea  of  constitutionality  concerned  in  the  case. 
Its  significance  lies  in  the  fact  that,  upon  the  eve  of 
John's  reign,  the  contract  idea  in  the  English  feudal 
population  still  had  considerable  vitality. 

If  the  authenticity  of  the  reported  speech  of  the 
archbishop  at  John's  coronation  could  be  trusted, 
rather  sweeping  conclusions  might  be  drawn  concerning 
the  constitutional  importance  then  attaching  to  the 
election  of  a  king.  But  the  speech  is  almost  certainly 
the  fabrication  of  a  later  time,  and  the  conception  of 
limited  monarchy  was  not  reached  through  the  develop- 
ment of  any  early  ideas  of  election. *  John  did  much 

1  How  slender  was  the  conception  of  elective  monarchy  in  the 
Anglo-Saxon  period  has  been  noted  above  (pp.  51,  52).  For  more 
than  a  century  after  the  Conquest,  there  were  scarcely  any  specific 
principles  of  royal  succession.  There  was  an  ill-defined  but  inclusive 
idea  of  heredity,  with  the  addition  of  certain  vague  criteria  of  desig- 
nation, age,  general  availability,  recognition  by  the  great  men  of  the 
realm,  etc.  But  each  succession  had  its  exceptional  elements. 
William  I.  was  king  by  conquest,  but  he  did  not  venture  to  assume 
the  crown  offered  him  by  Edgar  and  the  great  men  until  he  had 
consulted,  and  received  the  assent  of,  his  own  Norman  vassals. 
With  the  establishment  of  the  Norman  house,  it  seems  to  have  been 
taken  for  granted  that  the  crown  was  hereditary;  it  was  often  so 
spoken  of. .  William  II.  was  designated  by  his  father,  and  made  good 
his  position  by  promptly  seizing  the  treasury  and  gaining  the  support 
of  Lanfranc.  Henry  I.  gained  the  crown  by  prompt  action  upon  the 
death  of  his  brother,  securing  the  treasury  at  Winchester  and  gain- 
ing the  approval  of  the  magnates  and  others  who  happened  to  be 
present.  His  coronation  charter  and  his  masterful  personality 


260        Period  of  Constitution  Making 

to  transform  scutage  into  a  true  tax ;  he  was  constantly 
doing  violence  to  its  feudal  character.  He  levied  it 
every  year  until  late  in  his  reign.  This  element  of 
regularity,  which  disconnected  it  with  specific  military 
undertakings,  made  it  no  longer  a  payment  to  a 
suzerain,  but  to  a  sovereign.  Moreover  when,  as  a 
suzerain,  he  assembled  his  feudal  forces  to  follow  him 
to  France,  he  would  give  up  the  expedition  and  take 
money  instead  of  service.  This  he  did  repeatedly, 
and  spent  the  money  as  he  pleased.  John's  abuses 
were  manifold,  but  this  is  not  the  place  for  an  enumera- 
tion of  the  causes  of  Magna  Carta.  It  is  true  that 
there  was  hardly  an  element  among  his  people  that 
did  not  have  a  grievance,  but  some  were  only  oppressed 
indirectly.  Those  who  bore  the  brunt  of  his  oppression 
were  his  vassals.  All  the  feudal  abuses  of  William  II. 
were  repeated  in  an  aggravated  form.  John  broke 

secured  his  position.  Stephen  got  the  throne  instead  of  the  desig- 
nated and  direct  heiress,  Matilda,  by  promptly  going  to  England, 
while  she  remained  on  the  continent.  London  supported  him  at 
the  outset,  and  he  gained  one  influential  element  after  another 
through  lavish  promises.  Much  is  heard  of  "election "  in  connection 
with  his  succession,  but  an  examination  of  what  actually  took  place 
shows  that  it  meant  a  formal  assent  after  a  quid  pro  quo — not  any- 
thing which  we  would  regard  as  a  constitutional  election.  Henry 
II.  was  looked  upon  as  Stephen's  successor  before  the  latter's 
death  because  of  the  strong  claims  derived  from  his  mother,  a 
powerful  ecclesiastical  backing,  his  own  manifest  ability,  the  weak- 
ness of  Stephen,  and  the  death  of  Stephen's  oldest  son.  Richard 
I.  became  king  because,  as  Henry  II. 's  elder  and  abler  son.  there 
was  no  reason  why  he  should  not.  Probably  primogeniture,  a 
principle  which  originated  in  feudalism  in  the  inheritance  of  fiefs, 
had  begun  to  influence  succession  to  the  crown.  John  came  to  the 
throne,  however,  instead  of  the  primogenitary  claimant,  Arthur, 
under  Richard's  designation,  but  mainly  because  the  old  fear  of  a 
minority  was  still  stronger  than  the  new  principle.  The  nine-year- 
old  Henry  III.  was  made  king  because  he  was  John's  oldest  son 


The  Executive  261 

every  provision  which  a  feudal  contract  of  his  time 
could  possibly  have  contained.  Finally,  most  of  his 
vassals  refused  to  follow  him  to  the  continent,  basing 
their  refusal  on  the  same  grounds  offered  by  the  bishops 
in  Richard's  reign.  The  uprising  which  resulted  in 
Magna  Carta  was  not  a  purely  feudal  revolt,  of  which 
we  saw  the  last  instance  in  1173.  The  church  was 
here  concerned,  and  not  simply  in  its  baronial  character ; 
the  barons  also  had  a  substantial  backing  in  the  dis- 
content of  the  lower  classes.  There  was  in  it  the  hint 
of  a  national  revolt. 

Whence  came  the  possibility  in  England  of  anything 
even  verging  upon  a  national  revolt  at  a  time  when 
such  a  thing  was  impossible  elsewhere  in  Europe?  The 
regular  arrangement  of  the  important  elements  in 
previous  conflicts  had  been  king,  church,  and  lower 
classes  against  feudal  nobility.  Throughout  the  middle 
ages  in  Europe,  the  lay  nobles  stood  alone;  their 
interests  could  not  be  identified  with  those  of  any  other 

and  the  English  people  preferred  a  minority  to  the  rule  of  the 
foreigner,  Louis  of  France.  Beginning  with  this  succession,  primo- 
geniture prevailed  in  all  normal  times;  violent  misrule,  with  resulting 
usurpation  and  action  by  Parliament,  might  interfere  with  it.  It 
became  subject  to  the  principle  that  the  king  was  under  the  law. 
A  reflection  of  the  growth  of  a  determinate,  hereditary  succession 
is  found  in  the  disappearance  of  the  interregnum.  Until  the  suc- 
cession of  Edward  I.,  between  the  death  of  a  king  and  his  successor's 
coronation,  there  was  no  king;  the  king's  peace  was  dead  and  con- 
fusion and  lawlessness  sometimes  resulted.  Edward  I.'s  succession 
was  a  transition  in  this  matter.  He  was  on  crusade  when  his 
father  died;  but  four  days  later,  upon  his  father's  burial,  a  con- 
siderable number  of  prelates  and  barons  took  the  oath  of  allegiance 
to  him  notwithstanding  his  absence.  From  that  time,  he  was 
regarded  as  king,  and  was  the  first  so  regarded  before  coronation. 
With  the  succession  of  Edward  II.,  the  change  was  complete;  he 
became  king  by  the  fact  of  his  father's  death. 


262        Period  of  Constitution  Making 

class.  While  people  and  church  saw  a  lesser  danger 
in  the  growing  power  of  the  king  than  in  the  power  of 
numerous  local  tyrants,  there  was  no  possibility  of  a 
constitutional  winning  of  power  from  the  king  on  the 
part  of  the  nation.  In  England,  from  the  Conquest 
to  the  end  of  the  twelfth  century,  the  feudal  nobility 
had  received  such  a  succession  of  staggering  blows  that 
royalty  reached  at  a  stride  a  position  which  it  took 
centuries  to  attain  in  France  or  Spain.  The  simple  but 
fundamental  causes  of  this  divergence  in  England's  his- 
tory were  the  Norman  Conquest  itself  and  the  remark- 
able line  of  sovereigns  which  it  brought  to  the  throne. 
The  atrocious  character  of  John's  reign  was  suited 
in  every  detail  to  rouse  the  opposition  of  every  element 
that  could  make  itself  felt.  The  situation  is  significant 
beyond  exaggeration,  not  so  much  in  making  national 
opposition  possible  at  an  early  date,  for  opposition 
without  a  guiding  principle  would  have  wasted  itself; 
but  in  making  it  possible  just  early  enough  to  rescue 
from  decadent  feudalism  the  principle  upon  which 
constitutional  monarchy  was  to  be  built.1  The  Nor- 
man Conquest  was  responsible  for  the  English  constitu- 
tion, first  in  bringing  feudalism  into  the  country,  and, 
secondly,  in  making  possible  a  national  appropriation 
of  feudalism's  most  important  idea.  But  not  to  antici- 
pate by  further  generalisation,  let  it  be  emphasised 
that  the  national  character  of  the  rising  of  1215  is  very 
easily  exaggerated;  there  was  enough  of  nationality  in 
it  to  hint  of  possibilities  in  the  near  future,  but  it  was 

•See  below,  pp.  264-267.  In  decadent  continental  feudalism, 
the  nobility  retained  a  character  which  made  co-operation  with  the 
other  elements  of  the  population  impossible  long  after  the  contract 
idea  had  become  obscured. 


The  Executive  263 

substantially  a  feudal  revolt.  How  John  would  have 
been  dealt  with  had  Henry  I.'s  charter  not  been  dis- 
covered it  is  hard  to  conjecture.  It  had  been  a  long 
interval  since  1154,  and  the  idea  of  making  the  suzerain 
bind  himself  by  a  written  contract  had  evidently 
passed  out  of  mind.  But  this  fact  did  not  in  the  least 
affect  the  fundamental  character  of  the  rising;  the 
suzerain  had  broken  his  contract,  and  his  vassals 
proposed  to  compel  him  in  some  way  to  keep  it,  or  else 
sever  their  relations  with  him  and  take  to  themselves 
a  new  overlord. 

In  connection  with  the  present  subject,  only  a  few 
articles  of  the  Great  Charter1  need  be  considered,  but 
those  the  most  critical  and  characteristic.  The  early 
articles  are  predominantly  feudal  and  show  the  use  that 
was  berlig  made  of  Henry's  charter.  Like  William  II., 
Johr  had  abused  the  feudal  incidents,  and  here  was  the 
correction,  enunciated  with  care  and  detail.  But  on 
reaching  article  twelve,  something  is  found  not  con- 
tained in  the  earlier  document.  The  meaning  of  the 
article  is  perfectly  clear  when  viewed  in  the  light  of  the 
king's  relations  with  his  vassals  in  the  matter  of  scutage 
and  service  abroad. 

No  scutage  or  aid  shall  be  imposed  in  our  kingdom  except 
by  common  counsel  of  our  kingdom,  except  for  the  ransom- 
ing of  our  body,  for  the  making  of  our  eldest  son  a  knight, 
and  for  once  marrying  our  oldest  daughter,  and  for  these 
purposes  it  shall  be  only  a  reasonable  aid ;  in  the  same  way 
it  shall  be  done  concerning  the  aids  of  the  city  of  London.2 

This  is  a  statement  of  the  regular  feudal  principle  that 

1  A.  and  S.,  document  29 

2  For  the  reason  for  mentioning  London  in  this  feudal  connection, 
see  Adams  in  English  Historical  Review  xix.,  702-706. 


264        Period  of  Constitution  Making 

no  payments  beyond  those  implied  in  the  contract 
could  be  levied  without  the  consent  of  the  vassals  con- 
cerned. That  the  "common  counsel"  referred  to  was 
simply  that  which  the  king  found  in  his  feudal  court 
is  made  certain  by  the  detailed  description,  in  article 
fourteen,  of  how  such  counsel  was  to  be  taken.  The 
purpose  of  article  twelve  was  to  bring  back  to  strict 
feudal  observance  a  king  who  had  been  turning  scutage 
into  a  regular  tax.  But  in  the  period  following  the 
Charter,  feudal  ideas  and  practices  were  rapidly  disap- 
pearing; taxation  developed  along  several  lines;  the 
Charter,  though,  with  this,  among  other  articles,  omit- 
ted, was  frequently  confirmed,  and  the  contract  idea 
running  throughout  it  was  thus  kept  alive — and  that  in 
a  period  when  people  were  not  scientific  in  their  use  of 
history  and  hence  did  not  enquire  carefully  what  the 
contract  covered  or  meant  at  an  earlier  time.  The 
result  was  that,  whereas  in  1215  the  king's  vassals  held 
him  to  the  feudal  law  that  there  could  be  no  unusual 
aids  without  their  consent,  at  the  end  of  the  century 
the  king's  subjects  said  that  he  should  not  tax  them 
without  their  consent. 

A  completer  illustration  of  the  same  matter  is  found 
in  article  sixty-one.  This  is  the  most  important  article, 
for  it  is  the  clearest  exposition  of  the  principle  upon 
which  the  whole  Charter  rested.  It  says,  in  effect, 
that  there  were  recognised  customs  and  laws,  such  as 
those  just  set  down,  which  the  king  was  bound  to  keep, 
and  that  if  he  did  not  his  people  could  compel  him  to 
keep  them;  and  it  provided  the  clumsy  machinery  of 
the  twenty-five  barons  to  this  end.  The  feudal  system 
was  clearly  the  source  whence  this  principle  came. 
The  feudal  contract  was  the  formal  ground  for  this 


The  Executive  265 

whole  baronial  movement,  that  which  saved  it  from 
being  a  mere  unformulated  protest  against  oppression. 
The  feudal  character  of  Magna  Carta,  as  far  as  the  objec- 
tive contents  of  the  articles  is  concerned,  might  be  easily 
overstated;  other  than  feudal  abuses  were  corrected, 
and  non-feudal  classes  were  to  some  extent  concerned. 
But  a  study  of  either  the  remote  or  immediate  causes 
leaves  one  in  no  doubt  as  to  where  the  animus  of  the 
movement  lay;  the  initiative  was  taken  by  the  barons 
and  the  bulk  of  the  work  was  done  by  them.  Magna 
Carta  powerfully  emphasised  the  contract  between 
the  suzerain  and  his  tenants-in-chief,  and  between  the 
tenants-in-chief  and  their  vassals.  To  understand  the 
origin  of  limited  monarchy  in  England  one  has  mainly 
to  watch  the  perpetuation  of  the  contract  principle  and 
how  it  came  to  relate  the  sovereign  to  his  subjects, 
while  most  else  in  feudalism  passed  away. 

This  is  saying  that  the  English  constitution  rests  finally 
upon  the  feudal  system.  Without  that  system  the  consti- 
tution as  it  existed  in  the  fifteenth  century  or  as  it  exists 
to-day  would  not  have  been  possible.  The  English  limited 
monarchy  of  later  times  could  never  have  been  regarded 
as  a  direct  outgrowth  of  the  Saxon,  non-feudal  state,  as  it 
existed  under  Canute,  except  by  a  preconceived  and 
strained  interpretation  of  the  facts  of  history.  The  whole 
drift  of  that  state  was  towards  a  monarchy  of  the  Caro- 
lingian  type  in  which  the  crude  checks  upon  the  sovereign's 
will  or  equally  crude  machinery  for  operating  the  nation's 
will,  belonging  to  the  primitive  German  public  law,  had 
either  entirely  disappeared  or  been  dwarfed  into  insignifi- 
cance. The  accomplishment  of  this  result  was  made  im- 
possible in  England  by  the  Norman  Conquest.  It  was 
the  thorough  feudalisation  of  England  which  resulted 
from  the  Conquest  that  made  the  constitution  possible, 


266        Period  of  Constitution  Making 

not  by  establishing  a  strong  monarchy  against  which 
primitive  Teutonic  liberty  reacted  later,  but  by  intro- 
ducing with  the  strong  monarchy  a  new  conception  of  the 
relation  of  the  king  to  those  of  his  subjects  who  in  that 
age  constituted  the  nation,  and  who  alone  could  constitute 
it,  by  introducing  the  definite  contract-idea  of  the  feudal 
system. l 

The  conditions  in  England  which  made  the  contract 
idea  survive  feudalism  and  take  the  important  form 
and  place  that  it  did  have  next  to  be  examined.  The 
reign  of  John  was  followed  by  a  long  minority,  practi- 
cally a  new  thing  in  English  history.  In  order  to  get 
every  possible  backing  for  the  new  king,  the  Charter 
was  immediately  reissued,  but  with  the  omission  of 
the  clauses  just  considered.  The  change  was  in  the 
interest  of  the  central  power,  but  the  Charter  was  still 
a  compact.  Three  times  during  the  minority  was  it 
reissued,  and  in  1217  the  forest  articles  appeared  in  an 
enlarged  form  as  a  separate  charter ;  hence  the  constant 
reference  after  this  to  "the  Charters."2  The  edition 
of  1225  may  be  considered  the  final  form  of  the  Charter, 
that  which  was  used  so  frequently  during  Henry  III.'s 
reign  and  in  the  specially  important  confirmation  of 
Edward  I.  Henry's  minority,  when  Louis  of  France 
was  forced  to  leave  England  and  John's  foreign  mer- 
cenary leaders  were  driven  from  their  fat  holdings  and 
from  the  country,  was  a  time  when  English  national 
feeling  was  becoming  a  prominent  factor  in  events. 

>  Adams,  The  Critical  Period  of  English  Constitutional  History, 
American  Historical  Review  v.,  651,  652. 

J  Bdmont's  Chartes  des  Liberty's  Anglaises,  with  its  valuable  intru- 
duction  and  notes,  serves  best  for  a  study  of  the  various  editions  of 
the  Charter.  See  also  Stubbs,  Select  Charters,  pp.  296-354,  passim 


The  Executive  267 

Englishmen  were  proud  that  they  were  Englishmen  and 
distinguished  themselves  sharply  from  Frenchmen. 
It  was  a  time  favourable  to  new  ideas  or  new  applica- 
tions of  old  ones.  The  contract  idea  had  been  em- 
phasised by  three  reissues  of  the  Charter  and  the 
government  was  in  the  hands  of  ministers  chosen  by, 
and  responsible  to,  the  feudal  council.  There  was  a 
favourable  soil  for  a  conception  of  limited  monarchy 
to  take  root  in. 

But  the  time  was  critical  and  very  much  depended 
upon  the  character  of  Henry  III.  Had  he  been  a 
strong  and  intelligent  ruler,  the  contract  idea  would 
have  died  with  the  rest  of  feudalism.  But  his  weak- 
ness, meanness,  extravagance,  and  love  of  foreigners 
did  just  the  work  that  was  necessary.  Never  has  a 
country  been  so  fortunate  as  England  in  having  good 
sovereigns  and  bad  sovereigns  mingled  in  just  the 
right  proportions.  There  was  no  possibility  of  for- 
getting the  Charters  in  Henry  III.'s  reign;  to  make 
the  king  confirm  them  gave  his  exasperated  subjects 
something  to  do  that  seemed  rational;  for  many  years 
there  was  a  dawn  of  hope  each  time  he  solemnly  swore 
to  observe  them.  But  finally  men  began  to  realise 
with  how  mean  and  petty  an  individual  they  were 
dealing.  Since  the  Norman  Conquest,  with  one  possible 
exception,  Henry  was  the  first  king  who  had  not  been 
feared,  and  it  is  interesting  to  note  the  increasing 
freedom  with  which  his  shortcomings  were  denounced 
to  his  face.1  It  would  have  been  dangerous  to  stable 
government  to  have  had  such  a  condition  last  very 
long;  but  something  of  this  sort  was  needed  to  break 

1  For  a  good  example,  see  the  conversation  quoted  in  Taswell- 
Langmead,  English  Constitutional  History,  p.  251. 


268        Period  of  Constitution  Making 

down  the  tremendous  prestige  of  the  Angevin  mon- 
archy, and  it  lasted  just  long  enough. 

Sometime  between  1235  and  1259,  Bracton  wrote 
his  great  work,  De  Le gibus  et  Consuetudinibus  Anglice. 
In  the  first  book,  in  treating  of  the  "dignities"  of  divers 
persons  and  classes,  he  set  forth  the  dignity  of  a  king 
in  words  which  clearly  embody  the  principle  of  limited 
monarchy.  They  are  worthy  of  remembrance  as  the 
first  formulation  of  the  principle  and  for  their  precision 
and  force:  "For  the  king  ought  not  to  be  under  man 
but  under  God  and  under  the  law,  because  the  law 
makes  the  king.  Let  the  king  therefore  bestow  upon 
the  law  what  the  law  bestows  upon  him,  namely  do- 
minion and  power,  for  there  is  no  king  where  will  rules 
and  not  law."  1  When  one  reflects  that  this  was  written 
only  a  half-century  after  Richard's  reign,  some  concep- 
tion is  gained  of  what  the  first  half  of  the  thirteenth 
century  meant  in  constitutional  foundation  laying.2 

As  Henry  III.'s  reign  progressed,  there  was  an 
increasing  tendency  to  enforce  the  principle  contained 
in  article  sixty-one  of  Magna  Carta,  that  the  king  could 
be  compelled  to  keep  the  law.  In  1244  there  was  an 
attempt  to  place  extraordinary  authority  in  the  hands 

1  "  Ipse  autem  rex,  non  debet  esse  sub  homine,  sed  sub  Deo  et  sub 
lege,  quia  lex  facit  regem.  Attribuat  igitur  rex  legi,  quod  lex  attri- 
buit  ei,  videlicet  dominationem  et  potestatem,  non  est  enim  rex, 
ubi  dominatur  voluntas  et  non  lex." — Bracton,  De  Legibus  (edited 
by  Twiss  in  the  Rolls  Series)  i.,  38. 

1  In  France,  till  the  reign  of  Philip  Augustus,  the  power  of  the 
kings  had  been  very  far  behind  that  of  the  post-Conquest  kings  of 
England;  but  at  the  very  time  that  Bracton  was  writing,  the  prin- 
ciple was  being  enunciated  there  that  the  will  of  the  king  is  the 
highest  law.  Up  to  this  point  and  even  afterwards,  the  French 
and  English  governments  were  in  many  respects  analogous,  but 
the  parting  of  the  ways  had  been  reached  and  the  divergence  was 
very  rapid. 


The  Executive  269 

of  four  counsellors,  and  one  is  struck  with  the  fact 
that  the  Curia  Regis  was  not  so  wholly  feudal  in  its 
action  and  in  its  relations  to  the  king  as  formerly; 
there  was  a  germ  of  constitutionality  in  its  behaviour. 
Feudalism  was  passing,  but  feudalism's  leading  idea 
was,  thanks  to  the  character  of  the  reign,  living  and 
expanding.  The  crisis  of  the  reign  came  in  1258, 
resulting  in  the  rise  of  Simon  de  Montfort,  the  civil 
war,  and  the  last  seven  peaceful  years,  when  the  good 
results  of  the  conflict  appeared  in  the  administration 
of  Prince  Edward.  The  rising  of  1258  was,  in  essential 
features,  like  that  of  1215,  very  much  of  a  barons'  affair. 
Its  immediate  result  was  the  attempted  form  of  govern- 
ment outlined  in  the  Provisions  of  Oxford.1  Here  was 
a  repetition  of  the  device,  originated  in  article  sixty-one 
of  the  Charter,  to  put  the  government  into  the  hands 
of  an  aristocratic  group,  but  with  much  variation  and 
elaboration  of  detail.  It  is  no  matter  of  regret  that 
the  device  was  unsuccessful,  for  an  aristocracy,  once 
firmly  established,  would  have  been  more  difficult  to 
deal  with  than  the  king.  But  the  Provisions  of  Oxford 
served  to  continue  and  emphasise  the  idea  that,  under 
sufficient  provocation,  the  king  might  be  deprived  of 
his  power. 

In  the  spring  of  1265,  shortly  before  the  tide  turned 
against  the  triumphant  Simon,  Henry  III.  confirmed 
the  peace  made  the  preceding  year  and  at  the  same 
time  the  Charters.  Perhaps  the  most  striking  clause  in 
the  famous  sixty-first  article  of  the  Great  Charter  was 
that  in  which  John  was  made  to  admonish  his  people 
to  rise  against  him,  in  case  he  broke  the  law,  and  by  the 
use  of  force  bring  him  again  to  the  lawful  way.  This 

1  A.  and  S..  document  34. 


270        Period  of  Constitution  Making 

was  repeated  with  peculiar  distinctness  in  this  con- 
firmation by  Henry  III.  After  premising  unlaw- 
ful acts  of  the  king  or  Prince  Edward,  the  language 
concludes : 

.  .  .  it  shall  be  lawful  for  every  one  in  our  realm  to 
rise  against  us  and  to  use  all  the  ways  and  means  they  can 
to  hinder  us ;  to  which  we  will  that  each  and  every  one  shall 
henceforth  be  bound  by  our  command,  notwithstanding 
the  fealty  and  homage  which  he  has  sworn  to  us;  so  that 
they  shall  in  no  way  give  attention  to  us,  but  that  they 
shall  do  everything  which  aims  at  our  injury  and  shall  in 
no  way  be  bound  to  us,  until  that  in  which  we  have  trans- 
gressed and  offenced  shall  have  been  by  a  fitting  satisfaction 
brought  again  into  due  state,  according  to  the  form  of  the 
ordinance  of  the  afoiesaid,  and  of  our  provision  or  oa.th; 
this  having  done  let  them  be  obedient  to  us  as  they  were 
before.  .  .  . i 

Such  a  legalising  of  rebellion  was  full  of  possibilities; 
it  leads  one  to  question  what  would  happen  if  a  king 
refused  to  be  thus  limited  and  so  repeatedly  broke  his 
laws  and  agreements  that  there  was  no  possibility 
of  his  people's  again  being  obedient  as  they  were 
before.  The  answer  is  suggested  by  what  the  barons 
attempted  to  do  with  the  incorrigible  John — depose 
him  and  put  another  in  his  place. 

Henry's  surrender  of  the  administration,  during  the 
last  seven  years  of  his  reign,  to  the  able  and  law-abiding 
Edward  was  in  itself  a  confirmation  of  these  constitu- 
tional beginnings.  The  bad  reigns  of  John  and  Henry 
had  done  a  great  work ;  for  three  quarters  of  a  century, 
the  idea  of  compelling  a  contumacious  king  to  keep 

1  A.  and  S.,  document  36. 


The  Executive  271 

the  law  had  been  driven  again  and  again  into  men's 
minds.  Perhaps  it  would  not  be  rash  to  say  that 
limited  monarchy  was  an  accomplished  fact.  But 
still  the  men  who  had  felt  the  situation  most  keenly 
had  been  the  barons,  those  who  had  always  been  in 
contractual  relations  with  their  suzerain.  We  must 
get  further  out  of  the  feudal  period  than  1272  before 
we  should  pause  for  congratulation. 

In  the  reign  of  Edward  I.,  many  things  contributed 
to  the  passing  of  feudalism.  Little  can  be  done  here 
except  to  name  some  of  the  more  important  of  them. 
Before  his  accession,  Edward  seems  to  have  purposed 
some  direct  limitation  of  private  jurisdiction,  for 
almost  immediately  upon  his  arrival  in  England  he 
sent  commissioners  throughout  the  country  to  enquire 
into  the  nature  and  extent  of  the  franchises.  Their 
report  was  embodied  in  the  "Hundred  Rolls,"  which 
contain  much  valuable  information  upon  some  aspects 
of  local  government.  This  enquiry  resulted  in  the 
Statute  of  Gloucester,  1278,  whose  main  purpose  was 
to  limit  and  regulate  the  private  courts.  The  assump- 
tion seems  to  have  been  made — perhaps  not  seriously 
even  at  first — that  every  holder  of  important  fran- 
chises must  produce  some  written  royal  warrant  for 
them  or  else  surrender  them.  At  any  rate,  itinerant 
justices,  armed  with  the  Writ  Quo  Warranto,  were  sent 
to  investigate  each  case.  It  was  soon  found  impossible, 
without  causing  a  barons'  rebellion,  to  carry  out  such 
a  procedure  in  a  thorough  fashion.  Notwithstanding 
the  dictum  of  Bracton  that  no  prescription  held 
against  the  king,  those  who  could  prove*  an  uninter- 
rupted exercise  of  their  rights  back  to  the  coronation  of 
Richard  I.  (the  limit  of  legal  memory)  were  allowed 


272        Period  of  Constitution  Making 

to  retain  them.  But  the  great  thing  that  was  accom- 
plished was  the  establishment  of  a  definite  policy  of  the 
crown  to  make  no  further  grants  of  judicial  powers  or 
immunities.  As  the  franchises  were  always  liable  to 
escheat  to  the  crown  through  such  causes  as  failure  of 
heirs  or  forfeiture,  under  the  policy  inaugurated  by 
Edward  the  jurisdictional  side  of  feudalism  was  bound 
eventually  to  disappear. 1 

Edward's  land  legislation  had  the  same  general  animus 
as  his  proceedings  against  the  franchises.  The  Statute 
of  Mortmain,2  while  not  a  direct  blow  to  feudalism, 
was  calculated  to  strengthen  the  state  by  stopping  a 
kind  of  land  alienation  that  was  depriving  the  state 
of  its  proper  resources.  The  Statutes  De  Donis 
Conditionalibus  and  Quia  Emptores  l  were,  especially 
the  latter,  decided  limitations  upon  the  normal  feudal 
right  to  alienate  land.  De  Donis  made  possible  a 
strict  entail  of  estates  which  greatly  increased  the 
chances  of  escheat  to  the  original  grantor  or  his  heirs, 
while  Quia  Emptores  prevented  subinfeudation,  a  pro- 
cess essential  to  live  feudalism.  Edward  had  the 
great  feudal  lords  on  his  side,  for  the  more  land  and 
vassals  a  lord  had  the  more  benefit  would  he  derive 
from  these  measures,  and  the  king  himself  as  the  greatest 

>"  Speaking  roughly  we  may  say  that  there  is  one  century  (1066- 
ii  66)  in  which  the  military  tenures  are  really  military,  though  as 
yet  there  is  little  law  about  them;  that  there  is  another  century 
(i  166-1266)  during  which  these  tenures  still  supply  an  army  though 
chiefly  by  supplying  its  pay;  and  that  when  Edward  I.  is  on  the 
throne  the  military  organisation  which  we  call  feudal  has  already 
broken  down  and  will  no  longer  provide  either  soldiers  or  money 
save  in  very  inadequate  amounts." — P.  and  M.  i.,  252,  253. 

»  A.  and  S.,  document  40. 

'Ibid.,  documents  42  and  45.  A  careful  study  of  this  legis- 
lation should  here  be  made  from  the  documents. 


The  Executive  273 

landholder  and  highest  suzerain  would  profit  most  of 
all.  If  the  principle  of  Quia  Emptores  were  to  be  rigidly 
enforced,  then,  through  the  natural  operation  of  escheat, 
all  freemen  would  finally  come  to  be  tenants  in-chief  of 
the  king — or  rather  his  subjects,  for  then  all  proper 
meaning  of  tenancy-in-chief  would  have  passed  away. 
The  great  conflict  of  1297,  although  led  by  two 
earls  and  outwardly  as  much  an  affair  of  the  nobility 
as  the  risings  of  1215  and  1258,  clearly  contained 
elements  of  conscious  constitutionality.  The  king  was 
attempting  to  lead  into  the  foreign  service  not  only 
his  feudal  levy,  but  every  one  in  the  country  whose 
lands  furnished  a  yearly  income  of  £20  or  over;  and 
his  taxation  (there  is  now  no  hesitation  in  calling  it 
such)  affected  all  classes.  Thus  the  resistance,  how- 
ever prominent  a  part  in  it  was  played  by  the  nobility, 
was  not  a  resistance  to  feudal  abuses  primarily,  but  to 
national  abuses;  it  was  not  merely  holding  the  king 
to  his  feudal  contract,  but  preventing  his  oppression 
of  the  people.  Of  course  in  the  thought  of  the  moment, 
the  baronage  and  the  prelates  were  acting  on  purely 
selfish  motives  and  were  not  putting  themselves  forward 
as  champions  of  the  nation;  but  such  had  been  the 
changes  in  society  and  such  the  development  of  taxa- 
tion that  when  they  were  standing  for  themselves  they 
were  standing  for  the  nation  and  had  to  recognise  the 
fact.  But  they  could  not  have  done  what  they  did 
had  not  the  feudal  principle  of  holding  a  suzerain  to 
his  contract  been  teaching  men  to  limit  a  sovereign's 
unlawful  assumption  of  power.  The  men  of  1297  were 
unconscious  of  any  change,  and  believed  that  the 
difficulty  lay  in  the  fact  that  the  Great  Charter  had 
not  been  properly  enforced. 


274        Period  of  Constitution  Making 

The  protest  which  was  drawn  up  in  July,  1297, 
under  the  leadership  of  the  Marshall  and  Constable, 
earls  of  Norfolk  and  Hereford  respectively,  purported 
to  be  in  behalf  of  archbishops,  bishops,  abbots,  priors, 
earls,  and  the  wrhole  community  of  the  land  (tola  terre 
communitas) ;  in  its  articles  great  prominence  was 
given  to  the  word  communitas;  and  in  article  four  there 
is  mention  of  the  omission  or  neglect  of  the  articles 
of  Magna  Carta,  the  king  being  besought  to  correct 
this  abuse.1  The  great  constitutional  enactment, 
Confirmatio  Cartarum, 2  sealed  by  the  king  in  November, 
will  be  considered  in  some  detail  in  connection  with  the 
origin  of  Parliament.3  It  is  sufficient  to  note  here 
that  in  it  was  laid  down  the  principle  of  no  taxation 
without  the  consent  of  the  taxed.  It  was  not  a  restora- 
tion of  the  long  omitted  article  twelve  of  Magna  Carta ; 
but  the  principle  there  enunciated  that  the  suzerain 
could  not  arbitrarily  levy  unusual  exactions  upon  his 
vassals  had  become  a  national  principle  determining 
the  relation  of  sovereign  to  subjects. 

There  was  an  unfortunate  sequel  to  this  seemingly 
grand  conclusion  of  the  great  struggle  of  Edward's 
reign.  The  barons  seem  never  to  have  quite  believed 
that  Edward  fully  and  with  no  mental  reservations 
had  granted  what  Confirmatio  stated.  Edward,  on  his 
part,  was  piqued  and  hurt  at  this  lack  of  confidence, 
and  seems  to  have  exercised,  in  dodging  the  spirit  of 
the  charter,  much  of  that  "legal  captiousness " 
with  which  Stubbs  has  credited  him.  Certainly  in 
obtaining  from  Pope  Clement  V.,  in  1305,  a  release 
from  the  oaths  taken  in  1297,  he  almost  justified 

1  Bemont,  Charles  des  Libertts  Anglaises,  pp.  76-78. 

2  A.  and  S.,  pp.  86-88.  »  See  below,  pp.  361-363. 


The  Executive  275 

the  barons'  suspicions.     Bemont  has  well  stated  the 
situation : 

.  at  the  Parliament  of  Lincoln  (January,  1301), 
the  first  article  of  the  petition  addressed  to  the  king  was 
"that  the  two  charters  of  liberty  and  of  the  forest  be 
entirely  observed  in  all  their  articles  from  this  time  for- 
ward." This  precedent  was  fortunate:  henceforth,  and 
during  the  entire  fourteenth  century  at  least,  most  of 
the  Parliaments  began  thus  and  the  express  consent  of  the 
king  (Placet;  il  plet  au  roy)  was  carefully  entered  upon  the 
rolls. 1  The  precaution  was  not  unnecessary :  this  is  seen 
when  Edward,  finally  at  peace  with  France  and  Scotland, 
asked  and  obtained  from  Pope  Clement  V.  absolution  from 
all  his  oaths  and  the  annulling  of  the  charters  (1305,  29 
Dec.  .  .  .).  The  best  king  of  the  thirteenth  century 
had  done  then  as  the  worst;  like  John  Lackland,  Edward  I. 
had  avowed  that  he  had  granted  the  Great  Charter  "volun- 
tarily and  spontaneously";  at  heart  neither  the  one  nor 
the  other  ever  believed  that  he  had  abdicated  the  least  par- 
ticle of  his  authority.  This  unfortunate  attitude  lasted  as 
long  as  the  old  order  of  kingship,  that  is  to  say  to  the  end 
of  the  seventeenth  century.2 

One  may  hesitate  to  judge  quite  so  harshly  a  king 
who  gave  so  many  examples  of  fidelity  to  trust,  but 

»  Bemont  cites  Sir  Edward  Coke's  reckoning  that  Magna  Carta 
was  confirmed  "15  times  under  Edward  III.,  8  times  under  Richard 
II.,  6  times  under  Henry  IV.,  once  under  Henry  V.;  and  that,  to 
sum  up,  the  Great  Charter  and  that  of  the  forest  have  been  expressly 
established,  confirmed,  or  promulgated  by  32  acts  of  Parliament." 
He  adds:  "These  figures  can  be  taken  as  exact;  they  show  the  value 
that  the  nation  attached  to  these  repeated  confirmations;  but  also 
of  what  little  importance  the  king  made  them."  Translated  from 
Charles  des  Libertes  Anglaises,  pp.  xlix.,  1.  The  people  were  cer- 
tainly hammering  in  Bracton's  principle  that  the  king  was  under 
the  law. 

J  Ibid.,  pp.  xlvii.,  xlviii. 


276        Period  of  Constitution  Making 

there  is  here  a  valuable  caution  against  overestimat- 
ing the  voluntary  constitutionality  of  Edward  and  his 
successors. 

In  passing  from  a  reign  in  which  the  vigour  and 
wisdom  of  the  king  had  accomplished  so  much  of  per- 
manent value  into  the  miserable  reign  following,  the 
first  feeling  is  one  of  overwhelming  loss  and  misfortune ; 
and  in  looking  forward  through  the  whole  list  of  reigns 
between  Edward  I.  and  the  first  Tudor,  one  is  conscious 
of  a  distinct  stepping  down  from  thirteenth  century 
standards  of  thought  and  achievement.  The  four- 
teenth and  fifteenth  centuries  were  upon  lower  moral 
and  intellectual  plane.  But  with  reference  to  the 
establishment  of  limited  monarchy,  it  was  hardly  an 
unmixed  evil  that  Edward  I.  was  not  followed  by 
kings  as  great  as  himself.  With  Parliament  not  yet 
effective,  it  is  to  be  doubted  whether  the  principle  of 
resisting  a  king  who  broke  the  law  had  become  so 
engrained  in  the  people  that  it  could  not  have  been 
eradicated.  It  was  a  long  time,  however,  before 
there  was  an  opportunity  to  forget  the  principle  or 
before  there  was  a  king  able  to  defy  it  with  much  chance 
of  success.  It  was  only  the  third  year  of  Edward  II. 
when  the  king's  inability  and  wrongheadedness  resulted 
in  the  third  experiment  of  putting  the  government 
into  the  hands  of  a  commission  of  nobles.  The  com- 
mission was  known  in  this  instance  as  the  Lords 
Ordainers.  The  Ordainers  forthwith  decreed  that 
the  Charters  be  observed,  issued  orders  against 
the  most  pressing  grievances,  and  then  proceeded 
to  draw  up  a  document  of  forty-one  articles  which 
was  presented  to  the  king  and  became  law  in 
1311.  These  articles  were  called  the  New  Ordin* 


The  Executive  277 

ances.1  They  dealt  with  the  governmental  abuses 
of  the  time,  some  of  which  had  originated  in  the 
preceding  reign.  Taxation,  the  appointment  of  the 
king's  ministers,  and  annual  meetings  of  Parliament 
were  the  matters  of  chief  constitutional  importance. 
The  act  which  repealed  the  New  Ordinances  in  1322, 
when  Edward  was  under  the  control  of  the  Despensers, 
had  a  significant  clause  defining  the  competence  of 
Parliament  in  terms  which  anticipated  the  future.2 

But  the  great  fact  looking  towards  limited  monarchy 
in  Edward  II. 's  reign  was  his  deposition.  It  might 
seem  that  such  an  event  would  have  been  almost  the 
attainment  and  final  guarantee  of  constitutionality; 
but  it  is  necessary,  in  weighing  its  value,  to  consider 
carefully  its  cause.  Edward  was  not  deposed  because 
he  had  made  a  deliberate  attack  upon  the  constitution ; 
he  had  not  the  vigour  of  mind  or  will  for  such  an  under- 
taking. He  was  deposed  because  he  was  supremely 
lazy  and  incompetent,  one  whose  qualifications,  such 
as  they  were,  fitted  him  for  anything  but  kingship. 
He  is  a  striking  example  of  a  man  born  into  the  wrong 
station  in  life.  The  articles  of  accusation, 3  which  have 
a  deeply  tragic  interest,  say,  among  other  things,  that 
"throughout  his  reign  he  has  not  been  willing  to  listen 
to  good  counsel  nor  to  adopt  it  nor  to  give  himself  to 
the  good  government  of  his  realm,  but  he  has  always 
given  himself  up  to  unseemly  works  and  occupations, 
neglecting  to  satisfy  the  needs  of  his  realm."  In  the 
fourteenth  century,  the  machinery  of  government  was 
not  so  perfected  that  it  could  run  itself  and  allow  the 

1  A.  and  S.,  document  51. 

2  Ibid.,  p.  97.     See  below,  pp.  356,  367 . 

3  A.  and  S.,  document  55. 


278        Period  of  Constitution  Making 

king  to  be  a  figurehead.  Medieval  kings,  good  and 
bad,  were  laborious;  there  was  a  personal  element  in 
their  government  that  it  is  difficult  for  moderns  to 
understand.  A  king  that  would  not  work  was  an 
impossible  king.  This  is  not  quite  the  whole  story 
regarding  Edward  II. ;  he  did  some  positive  things  that 
aroused  enmity,  and  his  reign  would  have  dragged  on 
somewhat  longer  had  it  not  been  for  the  individual 
action  of  his  wife  and  Mortimer.  But  the  chief  trouble 
was  that  the  country  was  drifting  into  misrule  through 
lack  of  governance,  and  it  was  felt  that  a  change  was 
absolutely  necessary.  But  whatever  the  cause,  there 
was  nevertheless  a  deposition,  and,  in  an  uncritical  age, 
it  would  be  likely  to  serve  powerfully  as  a  precedent. 

In  the  discussion  of  Parliament's  acquisition  of 
power,  it  will  appear  how,  throughout  Edward  III.'s 
reign,  the  arbitrary  action  of  the  king  was  limited  by 
his  dependence  upon  the  country  for  the  great  sums  of 
money  necessitated  by  the  war  with  France.1  The 
bare  fact  of  fifty  years  of  such  limitation  is  all  that  need 
be  noted  concerning  this  reign  in  the  present  connection. 
The  constitutional  significance  of  Richard  II.'s  reign 
culminates  in  his  deposition,  a  deposition  much  more 
important  than  that  of  Edward  II.  Leading  up  to  it, 
are  some  matters  of  interest.  Richard  early  showed 
himself  extravagant,  improvident,  and  addicted  to 
favourites.  The  Parliament  of  1386  proposed  to 
impeach  his  Chancellor  and  appoint  a  commission  of 
reform.  The  king's  reply  showed  his  lofty  conception 
of  the  royal  prerogative.  Then  the  fate  of  Edward  II. 
was  recalled,  and  the  king  was  reminded  of  it  in  words 
that  show  clearly  the  constitutional  use  that  was  being 

»  See  below,  pp.  356-357. 


The  Executive  279 

made  of  the  early  precedent.1  The  king  yielded,  the 
Chancellor,  the  Earl  of  Suffolk,  was  impeached, 2  and 
a  commission  of  reform,  consisting  of  eleven  members, 
was  appointed.  It  was  given  very  broad  powers  and 
was  to  continue  for  one  year.  It  can  not  be  considered 
a  commission  of  regency,  for  Richard  was  nineteen 
years  old  and  Parliament's  act  was  the  result  of  his 
misgovernment  rather  than  of  his  incapacity.  It  was 
a  late  instance  of  the  device,  used  with  John,  Henry  III., 
and  Edward  II.,  of  placing  the  government  under  the 
control  of  an  aristocratic  group  in  time  of  crisis.  Its 
use  after  Parliament  was  well  established  shows  its 
tenacity  of  life  and  also  how  slowly  the  possibilities  of 
parliamentary  government  were  realized.  But  there 
can  also  be  seen  in  it  some  attempt  by  Parliament  to 
control  a  governing  group  within  the  Council;  that  it 
was  created  by,  and  in  some  sort  held  responsible 
to,  Parliament  somewhat  diminished  its  oligarchic 
character. 

A  few  months  after  the  dissolution  of  the  1386  Parlia- 
ment, Richard  summoned  the  judges  of  his  central 
courts  and  presented  to  them  a  set  of  questions  bear- 
ing upon  the  legality  of  the  recent  acts  of  Parliament. 
The  judges,  through  natural  subservience  or  fear,  an- 
swered unanimously  in  the  king's  favour. 3  Mindful 
of  the  origin  of  the  royal  courts,  it  is  easy  to  understand 
that  the  judges,  created  by  the  king,  felt  closely  identi- 
fied with  his  interests.  But  now  new  conditions  were 
arising ;  the  differentiation  of  government  into  executive, 
legislative,  and  judicial  divisions  and  the  possibility 

1  A.  and  S.,  document  94.  2  Ibid.,  document  93. 

3  For  further  detail,  see  Taswell-Langmead,  English  Constitutional 
History,  pp.  233-234. 


280        Period  of  Constitution  Making 

of  much  constitutional  history  growing  out  of  the  rela- 
tions of  these  were  foreshadowed.  Richard  II. 's  use 
of  the  judges  was  the  first  notable  instance  in  which 
the  executive  used  the  judiciary  in  a  quarrel  with  the 
legislature.  It  was  a  prophecy  of  much  future  history, 
for  the  subservience  of  the  judges  to  the  king  was 
the  last  serious  fault  in  the  English  constitution  to  be 
corrected. 

In  1389,  Richard  declared  himself  of  age.  The  last 
two  periods  of  his  reign,  that  of  constitutional  govern- 
ment from  1389  to  1397  and  that  of  attempted  abso- 
lutism from  1397  to  1399,  have  long  remained  a  puzzle. 
The  absolutist  tendencies  at  the  beginning  and  end  of 
his  reign  lead  one  to  think  of  the  middle  period  as  a 
long  dissimulation,  while  the  extravagance  of  his  later 
claims  and  the  freakishness  and  recklessness  with 
which  he  let  slip  the  substance  of  power  suggest  mad- 
ness. Mad  or  sane,  however,  his  measures  in  the 
Shrewsbury  Parliament1  to  secure  his  own  unlimited 
authority  were  a  methodical  attack  upon  the  limita- 
tions which  Parliament  had  already  imposed  upon 
the  sovereign.  In  his  deposition,  therefore,  amidst  the 
various  motives  which  actuated  it,  there  was  a  dis- 
tinctly constitutional  element.  An  attack  had  been 
made  upon  the'  laws  and  customs  under  which  a  king 
ought  to  rule,  the  precedent  of  Edward  II.  was  in  mind, 
Richard  II.  was  rejected,  and  a  king  who  would  rule 
under  the  law  was  put  in  his  place.  Richard  was  made 
to  declare  himself  "wholly  insufficient  and  useless,"  and 
the  act  of  Parliament  which  confirmed  his  deposition 
was  based  upon  his  "crimes  and  shortcomings,"  his 
"very  many  perjuries"  and  the  "default  of  governance 

1  A.  and  S.,  documents  100,  101. 


The  Executive  281 

and  undoing  of  the  good  laws."1  When  Edward  II. 
was  deposed,  he  was  succeeded  by  his  son;  Richard 
II.  was  succeeded  by  his  cousin  who  had  no  primo- 
genitary  claim.  Primogeniture  had  been  adopted  as 
the  principle  regulating  royal  succession ;  hence  Henry 
of  Lancaster  could  have  no  legitimate  claim  to  the 
throne  while  there  was  a  descendant  of  his  uncle 
Lionel,  duke  of  Clarence.2  He  was  king  by  con- 
quest and  consent  of  Parliament.  This  extension 
of  "the  right  of  deposition  into  a  right  of  breaking 
the  order  of  succession"  was  a  very  important  ad- 
vance in  Parliament's  control  of  the  monarchy.3 
This  special  dependence  upon  Parliament  gave 
Henry  IV. 's  reign  its  prematurely  constitutional 
character. 

He  kept  the  throne  only  because  he  proved  a  statesman 
of  sufficient  ability  to  conciliate  a  majority  of  his  subjects. 
He  had  to  perform  miracles  of  tact,  energy,  and  discretion, 
in  order  to  keep  that  sufficient  majority  of  the  nation  at 
his  back.  He  succeeded  in  the  task  and  ultimately  won 
through  all  his  troubles  to  a  period  of  comparative  safety 
and  tranquillity.  It  was  a  weary  and  often  a  humiliating 
game,  for  Henry  had  to  coax  and  wheedle  his  parliaments 
where  a  monarch  with  a  strictly  legitimate  title  would  have 
stood  upon  his  dignity  and  appealed  to  his  divine  right  to 
govern.  But  the  story  is  intensely  interesting,  as  being 

1  Documents  102-104  in  A.  and  S.  illustrate   the  deposition  of 
Richard  II. 

2  The  foolish  claim  which  may  have  been  hinted  at  in  the  words, 
"as  I  that  am  descended  by  right  line  of  blood  coming  from  the 
good  lord  king  Henry  III."  (A.  and  S.,  p.  164),  which  were  used  by 
Henry  when  he  made  his  oral  challenge  of  the  crown,  had  no  founda- 
tion in  fact  and  probably  gained  little  credence  at  the  time.     See 
Oman,  History  of  England  (1377-1485),  p.  153. 

3  Adams,  in  American  Historical  Review  v. ,  658. 


282       Period  of  Constitution  Making 

the  first  episode  of  what  we  may  call  constitutional  govern- 
ment in  the  modern  sense.1 

When  the  Yorkist  line  came  to  the  throne  in  1461,2 
there  was,  as  might  be  expected  from  legitimists,  a 
greater  manifestation  of  independence  and  security. 
But  the  Yorkist  sovereigns  knew  their  limitations  and 
never  attempted  such  high-handed  dealings  with  Parlia- 
ment as  are  to  be  found  in  some  parts  of  the  Tudor 
period.  However,  civil  wars  and  weak  or  bad  kings 
had,  by  1485,  so  hurt  the  central  power  that  England's 
greatest  need  was  a  strong  and  able  royal  line.  The 
overthrow  of  Richard  III.  and  the  succession  of  Henry 
of  Richmond  as  a  distinctly  parliamentary  sovereign, 
with  a  most  slender  hereditary  title  and  to  the  prejudice 
of  many  more  legitimate  claimants,  would  seem  likely 
to  result  in  an  extreme  and,  under  the  circumstances, 
dangerous  limitation  of  monarchy.  That  this  was 
not  the  result  was  due  to  the  extraordinary  ability  and 
tact  of  the  Tudors. 

Limited  monarchy  was  an  accomplished  fact  in 
England  at  the  end  of  the  middle  ages.  If  its  evolution 
has  been  correctly  traced,  its  origin  is  found  in  the 
introduction  of  continental  feudalism  through  the 
Conquest.  The  most  important  feature  of  that  feudal- 
ism was  the  contract,  voluntarily  entered  into  by  free 
men,  a  contract  which  entailed  mutual  rights  and 

'Oman,  History  of  England  (1377-1485),  p.  154.  In  a  later 
connection  (see  below,  pp.  387,  388),  there  will  be  occasion  to  note 
the  relations  of  Parliament  and  Council  to  the  king  and  to  each 
other  in  this  reign. 

2  The  language  of  the  parliamentary  recognition  of  the  Duke  of 
York  as  heir  to  the  throne  and  of  the  act  validating  the  acts  of  the 
Lancastrian  sovereigns  brings  out  clearly  the  legitimacy  of  then 
claim.  A.  and  S.,  documents  128,  129. 


The  Executive  283 

duties.  The  Norman  kings  had  many  tenants-in-chief , 
and  were  thus,  from  the  first,  in  this  contractual  relation 
with  many  of  their  subjects.  A  long  succession  of 
fortunate  events  and  circumstances  caused  the  contract 
principle  to  survive  feudalism,  its  original  habitat,  and 
to  form  the  basis  of  the  relations  between  the  king  and 
all  of  his  subjects  The  private  relation  of  feudalism 
had  become,  in  England,  a  public  relation,  and,  per- 
haps, the  most  precious  acquisition  of  the  state.1 

Under  the  Tudors  and  the  Stuarts,  especially  the 
latter,  the  royal  prerogative  was  a  subject  of  much 
controversy,  and  the  constitutionalists  of  the  Stuart 
period  often  cited  Lancastrian  precedents  and  even 
harked  back  to  the  royal  limitations,  real  or  sup- 
posed, of  Edward  I.'s  time.  What  was,  then,  the 
royal  prerogative  of  the  later  middle  ages?  Substan- 
tially what  Prothero  has  described  it  as  being  in  the 
sixteenth  century: 

The  prerogative  of  the  crown  consists  in  the  peculiar 
rights,  immunities,  and  powers  enjoyed  by  the  sovereign 
alone,  including  the  precedence  of  all  persons  in  the  realm. 
These  privileges  rest  partly  on  statute,  partly  on  custom 
and  precedent.  But  they  are  not  vague  and  indefinite : 
they  are  known  and  capable  of  description.  They  do  not 
amount  to  an  emancipation  from  law ;  on  the  contrary,  they 

1  "The  thing  which  was  peculiar  to  England  and  decisive  in  its 
constitutional  history  was  not  the  creation  of  Parliament  nor  the 
invention  of  the  representative  system,  however  important  and 
interesting  some  peculiarities  of  detail  may  be  in  both  particulars. 
The  peculiar  and  determining  fact  was  that  Parliament,  at  the 
moment  when  it  came  into  existence  as  a  distinct  institution,  found 
ready  to  its  hands,  as  a  result  of  a  line  of  development  independent 
of  its  own,  a  traditional  policy  of  opposition  and  of  the  control  of 
the  sovereign,  based  upon  definite  principles  and  rights." — Adams, 
in  American  Historical  Review  v.,  655,  656. 


284        Period  of  Constitution  Making 

are  limited  by  it.  This  is  the  view  of  Bracton ;  .  .  .  But 
these  recognized  and  definite  powers  do  not  exhaust 
the  rights  of  the  crown-,  because  circumstances  may  occur 
which  are  provided  for  neither  by  law  nor  custom. 
Thus  beyond  the  definite  prerogative  and  outside  the  area 
occupied  by  the  law,  there  is,  and  must  be,  a  vague  and 
undefined  power  to  act  for  the  good  of  the  State.  .  .  . 
On  this  lawless  province,  law  and  custom  gradually  en- 
croach, either  in  the  interest  of  the  sovereign  or  of  the 
subject,  .  .  .  The  less  advanced  the  State,  or,  in  other 
words,  the  less  complete  the  control  of  law  and  custom, 
the  larger  will  be  the  area  over  which  the  sovereign  is 
free  to  act.  It  was  still  very  large  in  the  days  of  the 
Tudors. 1 

There  was  little  attempt  to  define  the  royal  pre- 
rogative in  the  fourteenth  and  fifteenth  centuries.2 
There  was  clearly  a  recognition  of  those  definite  func- 
tions and  rights  of  the  crown  which  constitute  the 
prerogative  in  the  first  sense ;  and  there  are  indications 
that  most  of  the  sovereigns  ascribed  to  themselves 
extensive  powers  beyond  and  were  not  so  much  im- 
pressed by  the  limitations  implied  in  confirmations  of 
the  Charters  and  similar  acts  as  were  the  people.3 
When  it  has  been  shown  to  what  conscious  power 
Parliament  had  attained  by  the  end  of  the  fif- 
teenth century,  a  collision  between  crown  and 
House  of  Commons  in  the  "lawless  province"  will 
seem  quite  inevitable.  Not  until  the  conflict  was 
consciously  on,  would  men  concern  themselves  with 

1  Prothero,  Statutes  and  Constitutional  Documents,  pp.  cxxii.- 
cxxiv.,  passim. 

J  The  first  definitions  of  treason,  1352  and  1397,  however,  looked 
in  this  direction.  See  A.  and  S.,  documents  72  and  99. 

»  See  above,  pp.  274-276. 


The  Executive  285 

"forming   clear   notions   of   sovereignty  and  defining 
its  abode."1 

2.  The  Council. — The  executive  division  of  the 
English  government  did  not,  at  any  time,  consist  of 
the  king  alone.  The  king  always  acted  with  or  through 
some  body  of  men,  who  counselled  him  with  varying 
degrees  of  influence  and  authority.  Before  the  end  of 
the  middle  ages,  there  existed  a  very  definable  Council 
that  kept  its  own  records,  had  its  traditions,  and  exer- 
cised important  and  distinctive  administrative  func- 
tions. The  institutional  source  of  this  Council  has 
been  described.2  We  have  called  it  the  smaller  Curia 
Regis.  It  was  that  Curia  Regis  which  was  left  when, 
after  the  fuller  meeting,  the  majority  of  the  tenants- 
in-chief  went  home.  What  determined  who  should 
remain?  The  officials  remained  and  some  others,  but 
there  are  no  distinctive  marks  by  which  it  can  be  told 
just  who  the  others  were.  The  king's  will,  their  own 
will  and  convenience,  the  special  business  on  hand,  the 
part  of  the  country  where  the  king  happened  to  be— 
such  things  as  these  probably  determined.  Thus  the 

1  Prothero,  Statutes  and  Constitutional  Documents,  p.  cxxiv. 
Cowell,  in  his  famous  Interpreter,  misquoted  Bracton  where  he 
cited  him  as  saying  that  the  king  "  is  above  the  law  by  his  absolute 
power." — Ibid.,  p.  409,  and  above,  p.  268.  Prothero  comments 
upon  Cowell's  account  of  the  prerogative:  "Cowell  describes  the 
prerogative  as  'that  especial  power,  pre-eminence,  or  privilege 
that  the  king  hath  above  the  ordinary  course  of  the  common  law,' 
and  this  was  the  watchword  of  the  royalists.  It  required  only  an 
alteration  of  one  word  to  enable  Blackstone  to  adopt  Cowell's 
definition,  but  in  substituting  the  phrase,  'out  of  the  ordinary 
course  of  the  common  law,'  for  that  which  Cowell  uses,  he  substi- 
tuted a  constitutional  doctrine  for  one  destructive  of  the  constitu- 
tion. The  whole  quarrel  between  the  Stewarts  and  their  Parliaments 
lies  there." — Statutes  and  Constitutional  Documents,  p.  cxxv. 

1  See  above,  pp.  102—104. 


286        Period  of  Constitution  Making 

personnel  of  the  smaller  Curia  Regis  was  very  subject 
to  change.  All  that  can  be  said  is  that,  during  the 
twelfth  and  first  half  of  the  thirteenth  centuries,  the 
officials  were  in  practically  continuous  discharge  of 
their  duties,  and  that  the  king  had  with  them  at  fre- 
quent intervals,  if  not  in  permanent  session,  others  who 
for  the  time  being  were  regarded  as  his  counsellors. 
And  it  should  be  added  that  during  this  time  this  body 
was  becoming  less  feudal  both  in  make-up  and  business. 
The  work  done  in  the  early  thirteenth  century  by 
the  smaller  Curia  Regis  was  manifold  and  hard  to 
define,  for  it  rested  upon  no  theory  and  there  were  no 
constitutional  limitations.  During  the  minority  of 
Henry  III.,  this  body  was  specially  active,  as  was 
natural,  and  some  writers  have  ascribed  the  origin 
of  the  Council  to  that  period.  Beyond  the  fact  that 
the  conditions  of  a  minority  hastened  a  natural  evo- 
lution, little  can  be  said  for  this  theory;  the  counsellors 
certainly  acquired  none  of  their  technical  distinctions 
at  that  time.  Some  mention  of  what  they  did  shows 
their  advance  towards  administrative  work  of  a  high 
order.  They  shared  the  king's  diplomatic  work,  ad- 
vising with  him  upon  peace  and  war,  and  they  coun- 
selled him  in  his  dealings  with  rebellious  subjects. 
The  king  might  at  any  time  consult  them  about  routine 
administrative  work;  many  of  the  public  and  private 
orders  that  he  issued  bear  evidence  that  he  had  done 
so.  They  were  quite  regularly  concerned  with  forest 
matters,  the  surveys  being  carried  out  under  their 
oversight;  also  with  church  matters,  the  filling  of  va- 
cancies and  points  upon  which  royal  and  ecclesiastical 
interests  clashed;  and  with  the  government  of  Ire- 
land, Poitou,  and  Gascony.  During  the  minority,  the 


The  Executive  287 

counsellors  had  much  to  do  with  straightening  out  the 
Exchequer,  which  had  broken  down  late  in  John's 
reign;  and  since  regulating  taxation  was  one  of  their 
special  functions  and  many  financial  obligations  to 
the  crown  were  then  in  an  uncertain  state,  they  sat  as 
a  sort  of  board  of  equalisation.  Their  judicial  pro- 
vince was  large,  but  of  a  distinctly  supervisory  charac- 
ter. They  sent  mandates  to  the  courts  telling  them 
what  to  do  under  exceptional  circumstances,  as  when 
Innocent  III.'s  bull  interfered  with  the  ordeal;  they 
told  into  what  courts  unusual  cases  should  go,  and 
judges  often  asked  them  for  instruction  upon  points 
of  law;  they  were  a  court  of  first  instance  for  many 
cases  touching  barons,  sheriffs,  or  judges;  they  were 
often  appealed  to  by  litigants  who  claimed  that  the 
judges  had  been  unjust  or  the  law  wrongly  construed. 
But  there  could  be  no  Council,  in  the  later  sense, 
until  there  was  some  approach  to  a  distinctive  and 
continuous  membership.  This  was  quite  sure  to  come 
owing  to  the  increase  of  executive  business  and  to  the 
maturing  and  defining  influences  with  which  time 
touches  all  inchoate  institutions  which  are  exempt 
from  active  sources  of  disintegration.  It  is  important 
to  note  at  this  point,  while  the  attention  is  fixed  upon 
the  Council's  origin,  that  it  drew  its  authority  solely 
from  the  king;  Curia  Regis  was  king  in  action,  and  the 
Council,  wThich  grew  from  Curia  Regis,  was  created  by 
no  statute  or  other  act  outside  the  royal  will.  Till 
about  the  middle  of  the  thirteenth  century,  it  lacked 
the  "two  essential  features"  that  were  to  give  it  a 
"definite  and  complete  organic  character."  These 
were  "the  councillor's  oath  and  its  own  council  records. 
The  one  was  necessary  to  define  its  membership,  the 


288        Period  of  Constitution  Making 

other  was  necessary  to  give  it  independent  standing."1 
During  the  fourteenth  century,  the  precise  form  of  the 
oath  was  often  fixed  by  Parliament  at  times  when  new 
counsellors  were  appointed.  In  1425,  the  oath  was 
given  its  final  form.  The  defining  of  the  Council's 
membership  through  the  use  of  the  oath  had  an  im- 
portant effect  upon  its  composition:  till  the  early 
fourteenth  century,  the  common-law  judges  were  in 
the  nature  of  ex  officio  members,  and  in  the  reign  of 
Edward  I.  the  King's  Bench  had  scarcely  differentiated 
from  it;  but  late  in  the  century  the  judges  had  ceased 
to  be  members. 

The  Council  kept  no  regular  roll  till  1421;  but  we 
are  not  without  records  of  its  earlier  proceedings. 
These  early  records  were  incidental  to  its  work  and 
were  for  present  use;  there  was  no  idea  of  keeping  a 
record  for  its  own  sake  or  for  future  reference.  The 
general  character  of  its  early  work  can  be  learned 
through  these  original  memoranda:  writs  issued  under 
the  privy  seal  by  its  order,  the  king's  open  and  private 
letters  that  bear  evidence  of  its  participation,  and 
entries  upon  Exchequer  or  Chancery  rolls  that  show 
its  dealings  with  or  through  those  departments.  It 
entertained  a  great  number  of  petitions  from  individu- 
als or  small  groups,  and  the  replies  to  these,  which 
would  fall  under  the  categories  just  mentioned,  occupied 
much  of  its  time.  Records  of  formal  resolutions  upon 
more  general  matters  are  sometimes  found.  These 
were  its  ordinances,  its  legislation.2  In  the  very  early 
days,  the  records  do  not  clearly  distinguish  what  was 

1  Baldwin,  Beginnings  of    the    King's  Council,   Transactions  of 
the  Royal  Historical  Society  xix.,  56,  57. 
*  Se«  above,  p.  103,  and  below,  pp.  365-367. 


The  Executive  289 

done  by  the  Council  from  what  was  done  by  the  Council 
plus  the  estates,  the  primitive  Parliament.  It  seems 
safe  to  conclude  in  doubtful  cases  that  the  Council  was 
the  acting  body,  and  there  was  then  a  single  and  fairly 
definable  body  of  men  to  which  the  name  Council  may 
be  fairly  ascribed.1  Maitland  has  said: 

.  .  .  it  seemed  necessary  to  remind  readers  who  are  con- 
versant with  the  "  parliaments  "  of  later  days,  that  about  the 
parliaments  of  Edward  I.'s  time  there  is  still  much  to  be 
discovered,  and  that  should  they  come  to  the  decision  that 
a  session  of  the  king's  council  is  the  core  and  essence 

1  From  certain  descriptive  terms,  applied  loosely  by  the  chroni- 
clers to  bodies  of  men  of  whose  technical  character  they  had  littla 
knowledge,  it  has  sometimes  been  supposed  that  there  was  mora 
than  one  kind  of  king's  council  at  this  time.  Maitland,  in  his 
Introduction  to  Memoranda  de  Parliamento,  p.  Ixxxviii.,  note  i, 
says:  "The  one  point  about  which  I  venture  to  differ  from  what 
seems  to  be  the  general  opinion  of  modern  historians  (and  I  am 
uncertain  as  to  whether  the  difference  is  real)  is  that  I  cannot  find  in 
the  official  language  of  Edward  I.'s  time  any  warrant  for  holding 
that  the  king  has  more  than  one  concilium,  or  rather  consiUum', 
any  warrant,  that  is,  for  holding  that  this  term  is  Applied  to  two 
or  three  different  bodies  of  persons,  which  are  conceived  as  per- 
manently existing  bodies,  or  any  warrant  for  holding  that  the  term 
should  be  qualified  by  some  adjective,  such  as  commune,  or  mag- 
mtm,  or  ordinarium.  .  .  .  The  Latin  language  knows  no 
article  definite  or  indefinite;  the  language  of  the  time  knows  no 
difierence  between  counsel  and  council.  One  thing  is  clear:  an 
order  sending  to  their  homes  the  prelates,  earls,  barons,  knights, 
and  other  commoners,  '  sauve  les  Evesques,  Contes  et  Barouns, 
Justices  et  autres,  qui  sount  du  Counseil  nostre  seigneur  le  Roy,' 
is  an  intelligible  order."  This  conclusion  has  been  borne  out  by 
the  detailed  investigations  of  Baldwin.  Later  in  the  fourteenth 
century,  these  descriptive  terms  did  receive  some  official  recog- 
nition; but  their  use  reflects  no  multiplication  of  councils.  As  the 
Council  assumed  a  distinctive  character  in  the  thirteenth  and 
fourteenth  centuries,  it  very  commonly  bore  the  French  name, 
Conseil. 


Period  of  Constitution  Making 

of  every  parliamentum,  that  the  documents  usually  called 
"parliamentary  petitions"  are  petitions  to  the  king  and 
his  council,  that  the  auditors  of  petitions  are  committees  of 
the  council,  that  the  rolls  of  parliament  are  records  of  the 
business  done  by  the  council, — sometimes  with,  but  more 
often  without,  the  concurrence  of  the  estates  of  the  realm, — 
that  the  highest  tribunal  in  England  is  not  a  general  assem- 
bly of  barons  and  prelates,  but  the  king's  council,  they  will 
not  be  departing  very  far  from  the  path  marked  out  by 
books  that  are  already  classical. 1 

Because  it  has  happened  that  many  more  of  the  Council 
records  have  been  preserved  beginning  with  the  tenth 
year  of  Richard  II.,  it  has  generally  been  concluded 
that  there  was  an  organic  change  in  the  institution  at 
that  time.  But  it  has  recently  been  shown  that  this 
apparent  beginning  of  the  records  is  "a  mere  accident 
of  collection"  and  that  before  Richard's  time  the 
Council  had  attained  considerable  maturity.2  In 
1421,  a  more  purposeful  record  began;  the  minutes  of 
the  proceedings  were  copied  upon  a  regular  roll,  known 
as  the  Book  of  the  Council.  It  seems,  however,  never 
to  have  been  the  intention  to  thus  record  all  the  busi- 
ness that  was  done. 3 

There  were  other  evidences  that  the  Council  was 
becoming  a  political  entity.  Payments  to  the  coun- 

>  Introduction  to  Memoranda  de  Parliamento,  p.  Ixxxviii. 

J  Baldwin,  Early  Records  of  the  King's  Council,  American  His- 
torical Review  xi.,  14,  15. 

*  "Only  fragments  of  the  Book  are  extant,  but  it  is  evident  that 
it  was  a  very  imperfectly  kept  register.  There  is  very  good  reason 
to  believe  that  there  are  other  records  of  the  council  still  un- 
discovered, which  may  be  hidden  in  one  library  or  another." — 
Baldwin,  Early  Records  of  the  King's  Council,  American  Historical 
Review  xi.,  IA. 


The  Executive  291 

cillors  for  their  services  became  frequent  early  in  the 
fourteenth  century;  these  were  sometimes  annual  sal- 
aries, sometimes  annuities,  and,  for  minor  members, 
clerks,  etc.,  day  wages.  The  payments  were  liberal, 
and  careful  schedules  were  drawn  up,  which  show  the 
salaries  graduated  according  to  the  rank  of  the  coun- 
cillors. The  amount  and  regularity  of  the  salaries 
show  that  the  Council  was  a  very  busy  governing 
body  during  the  fourteenth  and  fifteenth  centuries. 
In  the  reign  of  Edward  III.,  it  was  deemed  neces- 
sary that  it  have  a  more  permanent  and  commo- 
dious meeting  place,  and  in  1346  work  was  begun 
upon  a  building  between  Westminster  Hall  and  the 
palace,  destined  for  its  especial  use.  From  about 
the  same  time,  it  employed  a  clerk  intermittently 
until  Henry  IV.'s  accession,  after  which  it  had  one 
constantly. 

In  Edward  III.'s  time,  the  Council  was  still  very 
large  and  its  membership  vague  and  heterogeneous. 
It  might  include  foreigners,  favourites,  minor  officials, 
or  honorary  members,  besides  those  who  more  regu- 
larly and  properly  composed  it.1  But  these  elements 
did  not  share  equally  the  arduous  routine  work.  That 
was  doubtless  done  by  a  rather  small  group  of  men; 
an  evidence  of  this  is  that  only  part  of  the  members 
received  a  salary.  But  the  sum-total  of  its  adminis- 
trative and  legislative  work  was  considerable  and  its 
relations  with  the  king  very  intimate.  During  this 
same  reign,  Parliament  was  becoming  a  conscious 
and  enthusiastic  legislative  body  and  saw  no  reason 

1  On  the  make-up  and  functions  of  the  Council  of  this  period, 
see  Baldwin,  The  Kings  Council  from  Edward  I.  to  Edward  III., 
English  Historical  Review  xxiii.,  1-14. 


292        Period  of  Constitution  Making 

why  it  should  not  also  try  its  hand  at  administration.1 
There  were  signs  of  a  clash  towards  the  end  of  the  reign 
and  the  circumstance  of  Richard's  minority  made  the 
clash  certain.  As  when  Henry  III.  was  a  minor  the 
unformed  body  of  counsellors  undertook  new  duties 
and  responsibilities,  so  in  Richard's  minority  the 
Council  saw  occasion  to  extend  its  work  and  authority. 
From  the  Good  Parliament,  1376,  to  the  end  of  Henry 
VI. 's  minority,  1437,  was  a  distinct  period  in  the  Coun- 
cil's history.  It  was  the  time  when  Parliament  made 
vigorous  attempts  to  curb  and  manipulate  it.  It 
emerged  without  having  succumbed  to  Parliament's 
attacks,  but  it  had  undergone  some  important  changes. 
The  history  of  the  Council  during  this  period  can  be 
approached  by  noting  what  were  Parliament's  pur- 
poses regarding  it.  The  most  important  attempt 
of  Parliament  was  to  gain  control  over  its  personnel. 
The  formal  appointing  power  lay  with  the  king,  under 
the  advice  of  the  lords  and  prelates;  but  the  House  of 
Commons  tried  to  specify  the  qualifications  of  coun- 
cillors, wished  to  be  informed  of  names  in  advance  of 
appointment,  and  tried  to  make  sure  that  its  expressed 
preferences  should  be  regarded  after  the  dissolution  of 
Parliament.  There  was  also  an  attempt  to  make  the 
Council  a  smaller  and  more  definite  body  than  it  had 
been  under  Edward  III.  Parliament's  idea  seems  to 
have  been  that  it  should  consist  of  the  Chancellor,  the 
Treasurer,  the  Keeper  of  the  Privy  Seal,  a  few  prelates, 
earls,  and  barons,  and  a  sprinkling  of  knights  or  even 
burgesses.  Under  this  influence,  the  Council,  in 
Richard  II. 's  reign,  usually  had  a  membership  of  from 

•  For  an  account  of  Parliament's  administrative  attempts  and 
the  conflict  between  ordinances  and  statutes,  see  below,  pp.  370-3  78. 


The  Executive  293 

* 

twelve  to  fifteen.  It  was  believed,  moreover,  that 
frequent  changes  were  salutary,  and  there  were  some 
rather  unsuccessful  attempts  to  have  yearly  Councils. 
In  the  second  place,  Parliament  attempted  various 
regulative  measures.  With  a  small  and  certain  mem- 
bership and  all  the  members  sharing  in  the  work  with 
substantial  equality,  it  seemed  proper  that  all  should 
be  placed  upon  a  definite  salary  basis,  that  salaries 
be  paid  by  the  year  or  the  day,  and  that  annuities  be 
done  away  with.  Parliament  also  undertook  to  dictate 
what  business  the  Council  should  do  and  how  it  should 
do  it;  and  in  this  connection  came  those  attempts, 
already  noticed,1  to  limit  the  Council's  judicial  pre- 
tensions. Finally,  Parliament,  through  its  high  judi- 
cial power  of  impeachment,  set  itself  to  supervise  the 
conduct  of  councillors  and  keep  them  from  the  many 
kinds  of  corruption  incident  to  their  position.2 

Most  of  this  parliamentary  control  was  lost  during 
Richard's  last  two  years  of  personal  and  despotic  rule, 
but  the  same  kind  of  pressure  was  resumed  in  the 
Lancastrian  period.  Parliament,  however,  probably 
exerted  more  real  authority  over  the  Council  in  the 
early  years  of  Richard's  reign  than  ever  before  or  after. 
That  this  did  not  become  permanent  bears  witness  to 
the  fact  ' '  that  the  most  important  features  which  the 
privy  council  of  later  times  is  known  to  have  possessed 
were  well  established  before  the  reign  of  Richard  II. 
The  organic  changes  through  which  it  passed  were 
for  the  most  part  not  those  of  statutory  regulation, 

1  See  above,  pp.  214,  215. 

2  The  articles  of  impeachment  drawn  in  1386  against  the  earl  of 
Suffolk,  who  had  been  Chancellor,  excellently  illustrate  the  nature 
of  fourteenth-century  "graft." — A.  and  S.,  document  93. 


2Q4        Period  of  Constitution  Making 

but  of  gradual  growth  in  an  institution  already 
mature."1  But  the  period  of  parliamentary  pressure 
produced  some  salutary  changes  that  were  stamped  in- 
delibly upon  the  Council:  it  was  never  again  so  large 
and  vague  as  it  had  been  under  Edward  III.;  its 
membership  was  of  a  higher  order  and  under  a  greater 
sense  of  responsibility;  and,  though  it  never  wholly 
lost  its  legislative  and  judicial  functions,  it  was  at 
this  time  that  it  became  established  as  a  distinctively 
administrative  body. 

During  the  prematurely  constitutional  reign  of 
Henry  IV.,  king,  Council,  and  Parliament  worked 
together  in  remarkable  harmony.  The  control  of 
Parliament  was  such  that  there  is  a  suggestion  of  the 
modern  Cabinet  system;  in  the  notable  governmental 
scheme  of  1406,  which  received  the  king's  assent,  is  seen 
a  small  administrative  group  working  with  the  king 
and  yet  bound  to  reflect  the  sentiment  of  Parliament.2 
There  was  a  decided  change  in  the  Council  after  Henry 
VI.  came  of  age;  parliamentary  control  was  thrown  off, 
especially  under  the  influence  of  Henry's  arrogant 
wife,  Margaret  of  Anjou,  who  had  no  understanding  of 
the  English  constitution.  Instead  of  naming  coun- 
cillors for  short  periods,  it  now  became  the  custom  to 
appoint  them  for  the  king's  life,  and  that,  too,  men  who 

1  Baldwin,  Antiquities  of  the  King's  Council,  English  Historical 
Review  xxi.,  20. 

J  For  a  further  account  of  the  constitutionality  of  this  period, 
see  Pt.  III.,  §  III.,  8.  "When  in  1 406  the  house  of  commons  told  the 
king  that  they  were  induced  to  make  their  grants,  not  only  by  the 
fear  of  God  and  love  for  the  king,  but  by  the  great  confidence  which 
they  had  in  the  lords  then  chosen  and  ordained  to  be  of  the  king's 
continual  council,  they  seem  to  have  caught  the  spirit  and  anti- 
cipated the  language  of  a  much  later  period." — Stubbs,  Constitu- 
tional History,  %  367. 


The  Executive  295 

were  often  unacceptable  to  Parliament  and  the  country 
in  general.  This  did  not  result  in  a  greater  royal 
control  over  them;  they  often  took  matters  entirely 
into  their  own  hands  and  ruled  the  king  more  arbi- 
trarily than  when  Parliament  was  acting  through  them. 
In  1444,  an  ordinance  was  enacted  which  did  much  to 
secure  this  power.  "Under  the  modest  appearance 
of  a  series  of  formal  rules  about  the  presentation  of 
petitions,  it  practically  ensures  that  every  grant  of  the 
Crown  should,  from  the  moment  of  its  presentation  as 
a  petition  to  the  time  when  it  is  formally  issued  as  a 
royal  writ,  be  under  the  notice  of  the  King's  Ministers."1 
From  1437  to  the  accession  of  the  first  Tudor,  was  the 
time  of  the  Council's  greatest  power.  The  kings  seem 
to  have  conjured  up  a  spirit  which  they  could  not 
control.  Of  the  Council's  remots  ancestor,  the  Curia 
Regis,  it  has  been  said  that  it  was  the  king  in  action; 
in  the  middle  fifteenth  century,  the  king  was  often  the 
Council  in  action.  The  Council  had  become  by  1485 
the  great  executive  power  of  the  nation  2 ;  but  it  wielded 
a  dangerous  power,  for  it  largely  represented  a  class 
that  was  dangerous  to  the  constitution.  But  a  line 
of  sovereigns  very  different  from  the  Yorkists  was  to 
succeed  to  the  throne;  a  Council  of  masterful  prelates 
and  lords  might  overshadow  Edward  IV.  or  Richard 
III.,  but  it  would  be  hard  to  imagine  a  Council  that 

1  Dicey,  The  Privy  Council,  p.  39. 

2  The  Council's  judicial  work  reached  a  very  low  ebb  during  the 
fifteenth  century;  the  Court  of  Chancery  had  separated  from  it, 
leaving  it  almost  no  civil  jurisdiction,  while  its  criminal  jurisdic- 
tion was  often  very  slight;  but  this  latter  was  to  receive  an  extra- 
ordinary extension  under  the  Tudors  and  Stuarts.     As  a  criminal 
court,  whether  acting  through  a  committee  or  as  a  whole,  it  was 
the  famous  Court  of  Star  Chamber. 


296        Period  of  Constitution  Making 

could  do  the  same  by  Henry  VII.,  Henry  VIII.,  or 
Elizabeth.  The  Tudors  seized  the  Council  and  made 
it  the  most  serviceable  instrument  of  their  despotism. 
When  the  royal  despotism  was  ended  in  the  seventeenth 
century,  the  old  Lancastrian  parliamentary  control 
came  back,  but  was  soon  perfected  and  adapted 
through  the  wonderfully  successful  device  of  the 
Cabinet. 

The  Cabinet  has  been  the  only  great  creation  in  the 
English  constitution  since  1485,  and  even  that  was 
hinted  at  in  the  fifteenth  century.  One  hint  of  it 
has  been  noted  in  connection  with  Henry  IV. 's  reign; 
perhaps  there  was  one  even  under  Richard  II.1  There 
was  certainly  a  second  in  the  reign  of  Henry  VI.  The 
term  council  had  always  been  loosely  used ;  even  when 
there  had  come  to  be  a  recognised  body  of  sworn  coun- 
cillors, a  larger  and  vaguer  group,  containing  men,  as 
for  instance  the  common-law  judges,  whom  the  king 
occasionally  called  in  for  advice,  was  sometimes  re- 
ferred to  as  a  council.  To  the  smaller  body,  a  de- 
scriptive name,  such  as  secret  or  private,  was  at  times 
applied  in  the  late  fourteenth  and  early  fifteenth 
centuries.  This  tendency  to  distinguish  between  the 
Council  proper  and  any  larger  body  increased  during 
the  minority  of  Henry  VI.,  and  meetings  of  the  Council 
were  more  often  held  in  private.  It  was  a  time  when 
much  responsibility  rested  upon  the  councillors,  and 
they  had  been  much  annoyed  on  certain  occasions  at 
having  state  secrets  leak  out,  owing  to  the  presence  at 
Council  meetings  of  others  than  the  sworn  members. 
As  the  civil  war  approached  and  the  factions  in  the 
nobility  grew  more  partisan  and  bitter  in  their  politics, 

1  See  above,  p.  279. 


The  Executive  297 

secrecy  and  exclusiveness  were  carried  a  step  farther. 
The  real  administrative  power  did  not  lie  with  the 
Council  as  a  whole,  but  with  the  leaders  of  the  party 
for  the  moment  in  power,  who  formed  a  sort  of  inner 
clique  or  ring,  a  secret  or  privy  council.  Further,  it 
was  during  Henry  VI. 's  reign  that  the  term  Privy 
Council  came  into  general  use,  and  unquestionably  as 
a  result  of  these  conditions.  "It  is,  therefore,  suffi- 
ciently apparent  that  under  Henry  VI.  a  select  Council 
was  gradually  arising  from  the  midst  of  the  general 
Council,  that  a  change  was  taking  place  precisely  analo- 
gous to  the  process  by  which,  in  a  later  age,  the  Privy 
Council  itself  gave  birth  to  the  Cabinet."  1  Under  the 
Tudor  sovereigns,  when  the  Council  was  entirely  under 
royal  control,  this  tendency  to  form  rings  and  much 
of  the  exclusiveness  and  secrecy  were  bound  to  pass 
away.  But  the  term  Privy  Council  clung,  and  has 
since  been  applied  to  whatever  manner  of  king's  council 
has  existed  in  England.  And  when,  after  the  Restora- 
tion, important  political  rings  formed  within  the  Privy 
Council,  another  term  to  signify  clique  or  junto  was 
sought,  and  cabal  came  into  use;  and  when  such  inner 
administrative  ring  had  outlived  its  early  invidious 
character  and  was  becoming  a  necessary  part  of  the 
constitution,  the  name  of  the  small  private  room  in 
which  it  met  was  transferred  to  the  body  itself,  and 
there  was  a  Cabinet. 

1  Dicey,  The  Privy  Council,  p.  45. 


SECTION  III 

THE   MAKING   OF   PARLIAMENT 

I.  Origin  of  the  House  of  Lords. — In  the  thirteenth 
century  a  very  fundamental  change  was  taking  place 
in  the  larger  Curia  Regis.  When  the  change  was 
completed,  that  body  had  become  the  House  of  Lords. 
At  the  same  time  there  were  being  added  to  it  certain 
new  elements  which  were  finally  to  form  the  House  of 
Commons.  These  were  the  two  great  processes  in  the 
making  of  Parliament,  with  the  first  of  which  we  are  here 
concerned.  In  dealing  with  this  subject,  it  is  especially 
necessary  to  rid  the  mind  of  modern  preconceptions; 
the  very  word  Parliament  produces  involuntary  mental 
images  of  the  fully  developed  institution  that  are 
certain  to  interfere  with  the  understanding  of  its 
beginnings.  One  must  be  willing  to  take  one  step  at  a 
time  and  to  be  mindful  that  the  great  institutional 
creations  of  medieval  England  were  not  the  products 
of  grand,  purposeful  building  for  the  future,  but  that 
they  grew  very  slowly  through  the  skilful  adaptation 
of  means  to  immediate  ends,  that  there  was  a  careful 
preservation  of  the  valuable  things  of  the  past  and  a 
spirit  of  caution  and  compromise  which  allowed  to 
each  of  several  contending  interests  its  due  considera- 
tion, and  that  physical  environment  and  very  many 
things  which  can  be  ascribed  to  nothing  but  pure 
chance  played  important  parts. 

ao8 


Parliament  299 

It  has  been  shown  that  the  larger  Curia  Regis  was 
the  king's  feudal  court 1 ;  but  unlike  the  feudal  courts 
of  other  lords  it  might  at  times  contain  men  who  were 
not  tenants-in-chief ,  for  the  king  was  always  more  than 
pure  suzerain.  From  the  beginning,  the  will  of  the  king 
was  an  element  in  determining  its  make-up.  The  class 
of  king's  vassals  in  England  was  always  very  diverse 
within  itself;  while  it  contained  all  of  the  very  great 
landholders,  there  was  also  within  it  a  large  number  of 
small  holders.  Probably  from  the  time  of  the  Con- 
queror, there  was  some  recognised  cleavage  between 
those  who  held  much  land  of  the  king  and  those  who 
held  little.  In  the  reign  of  Henry  I.,  the  great  tenants- 
in-chief,  who  led  their  own  vassals  to  the  feudal  host, 
received  a  special  form  of  summons  to  the  host,  and 
there  was  a  corresponding  difference  in  the  form  of 
summons  to  court  service.  Hence  arose  the  distinc- 
tion between  the  major  barons  and  the  minor  barons,  of 
whom  we  begin  to  hear  in  the  twelfth  century.2 

Attendance  in  the  Curia  Regis  was  not  regarded  as 
a  privilege,  but  as  a  burden  to  be  avoided  if  possible. 
This  was  especially  true  of  the  minor  barons  who  were 
less  able  to  bear  the  expense  of  attendance  and  who 
found  little  at  the  court  to  profit  or  attract  them. 
They  were  coming  to  regard  military  and  court  serv- 
ice, their  strictly  feudal  duties,  as  burdensome,  and 
were  giving  more  personal  attention  to  their  lands  with 
a  view  to  making  them  financially  profitable;  their 

1  See  above,  pp.  102-104. 

*  Baron  was  not  a  title  of  dignity,  but  a  term  applying  to  all  who 
held  land  of  the  king  on  the  basis  of  military  service.  In  Henry 
II. 's  reign,  the  major  barons  dealt  directly  with  the  Exchequer  in 
discharging  their  financial  obligations  to  the  king,  while  the  minor 
barons  dealt  first  with  the  sheriff. 


300        Period  of  Constitution  Making 

interests  were  becoming  localised.1  The  different 
methods  of  summoning  major  and  minor  barons  to  the 
Curia  Regis  received  formal  recognition  in  article 
fourteen  of  Magna  Carta,  which  was  undoubtedly  the 
work  of  the  barons  whose  interests  it  favoured.  An 
individual  summons  was  to  be  sent  to  the  greater  bar- 
ons, while  to  all  the  lesser  tenants-in-chief  was  sent  a 
general  summons  through  the  sheriffs.  This  latter 
was  generally  regarded  as  a  permission  to  stay  away, 
which  was  what  the  minor  barons  wanted.  The  make- 
up of  the  Curia  Regis  came  thus  to  be  more  dependent 
upon  the  will  of  the  sovereign  and  tenancy-in-chief 
less  a  basis  for  attendance,  though  it  did  not  entirely 
disappear  for  centuries;  in  other  words,  peerage  by 
writ  of  summons  was  taking  the  place  of  the  feudal 
principle  in  determining  the  composition  of  the  king's 
court. 

The  question  naturally  arises  at  this  point  whether 
there  was  in  the  thirteenth  century  a  distinct  class  of 
major  barons  who  might  always  claim  the  special 
summons  or  whether  receipt  of  the  summons  wholly 
determined  membership  in  the  class.  As  in  most 
medieval  institutions,  one  finds  here  vagueness  and 
irregularity,  where  he  might  expect  adherence  to  a 
fixed  principle.  In  Henry  III.'s  reign,  there  were 
certainly  many  barons  so  great  and  powerful  that  they 
would  always  expect  or  demand  a  summons.  In  the 
meeting  of  1255,  for  instance,  complaint  was  made  that 
all  had  not  been  summoned  who,  by  the  provision  of 
the  Charter,  should  have  been.  On  the  other  hand, 
the  special  summons  made  its  recipient  a  major  baron 
if  he  had  not  been  one  before.  But  attendance  was 

>  See  below,  pp.  307,  308. 


Parliament  301 

still  felt  to  be  a  burden  except  in  cases  of  special  in- 
terest, as  when  an  unusual  aid  was  demanded.  It  was 
doubtless  for  this  reason  that  article  fourteen  of  the 
Charter  provided  for  a  statement  in  the  summons  of 
the  business  to  be  transacted,  that  the  time  and  place 
of  meeting  be  clearly  indicated,  and  that  the  summons 
be  sent  at  least  forty  days  in  advance.  The  personnel 
of  successive  meetings  varied  much ;  for  the  distinction 
between  major  and  minor  barons  was  not  sharply 
drawn,  and  there  was  a  wide  province  between  the 
very  large  and  the  very  small  holders  in  which  the 
king's  will  acted  freely.  This  remained  the  condition 
until  well  into  the  reign  of  Edward  III.;  there  could 
be  no  change  until  attendance  upon  a  central  assem- 
bly had  become  a  thing  to  be  desired.1  The  capri- 

1  Maitland  has  commented  instructively  upon  the  barons'  "  right  " 
to  attend  the  "  parliament  "  of  1305 :  "  We  must  put  duty  in  the  first 
line,  right  in  the  second.  We  have  learnt  to  do  this  when  discussing 
the  constitution  of  those  county  courts  which  send  knights  to  the 
house  of  commons;  must  we  not  also  do  it  when  we  are  discussing 
the  constitution  of  the  house  of  lords  and  of  the  council?  In  1305 
the  baron  who  had  come  from  Yorkshire  or  Devonshire,  had  been 
compelled  to  stay  three  weeks  in  London  at  his  own  cost,  for  he  was 
paid  no  wages.  Did  he  very  much  want  to  spend  another  three 
weeks  there  hearing  dreary  petitions  concerning  the  woes  of  the 
Scots  and  Gascons  ?  At  a  later  time  a  desire  for  political  power  or 
social  pre-eminence  will  make  the  English  baron  eager  to  insist  on 
his  right  to  a  writ  of  summons,  eager  to  take  a  part,  however 
subordinate,  in  all  that  is  done  by  the  house  of  lords.  But  in 
Edward  I.'s  day  the  baronage  is  hardly  as  yet  a  well-defined 
body,  and  it  may  be  that  there  are  many  men  who,  unable  to  fore- 
see that  their  '  blood '  is  being  '  ennobled '  for  ever  and  ever,  are  not 
best  pleased  when  they  receive  a  writ  which  tells  them  that,  leaving 
their  homes  and  affairs,  they  must  journey  and  labour  in  the  king's 
service,  and  all  this  at  their  own  cost.  Thus  for  many  years  one 
great  constitutional  question  can  remain  in  suspense.  It  is  not 
raised,  no  one  wishes  to  raise  it.  So  long  as  the  king  does  not  im- 
pose taxes  or  issue  statutes  without  the  consent  of  the  baronage, 


302        Period  of  Constitution  Making 

ciousness  of  the  king's  summonses  shows  that  no  new 
principle  that  would  make  a  regular  and  self-con- 
scious assembly  was  being  introduced. 

The  change  came  as  a  result  of  Edward  III.'s  con- 
tinuous demands  for  money  and  the  increasing  busi- 
ness brought  before  the  barons;  they  were  vitally 
concerned  in  the  money  grants  and  in  some  of  the 
other  business,  and  the  growing  activity  and  respon- 
sibility of  the  assembly  gradually  begot  ideas  of  po- 
litical power  and  honour.  Late  in  Edward  II. 's  reign, 
the  barons  had  first  spoken  of  themselves  as  peers  of 
the  realm  and  this  is  perhaps  the  first  indication  that 
honour  was  being  attached  to  the  old  burden  of  suit  of 
court.1  If  a  baron  received  one  summons,  he  began 
to  expect  another  at  the  next  meeting.  He  by  no 
means  always  got  it,  but  the  tendency  of  the  fourteenth 
century  was  away  from  capricious  summonses.  And 
if  he  continued  to  receive  summonses  throughout  his 
life,  it  raised  the  presumption  that,  after  his  death, 
his  heir  would  receive  them,  for  it  was  an  age  when 
all  valuable  rights  were  likely  to  become  hereditary. 
Thus  the  fuller  meeting  of  the  old  Curia  Regis  was 
being  metamorphosed  into  a  House  of  Lords,  which 
peers  attended  on  the  basis  of  a  strictly  hereditary 
dignity  without  reference  to  tenure.  The  change  was 
not  complete  in  the  reign  of  Richard  II.,  for  relics  of 
the  old  feudal,  tenurial  basis  lasted  a  surprisingly  long 
time;  but  a  comparatively  small  and  quite  compact 
body  of  hereditary  peers  had  taken  shape. 

the  baron  hopes  that  the  king  will  mind  his  own  business  (and  it  is 
his  business  to  govern  the  realm)  and  allow  other  folk  to  mind 
theirs." — Introduction  to  Memoranda  de  Parliamento,  pp.  Ixxxvi., 
Ixxxvii. 

1  Pike,  Constitutional  History  of  the  House  of  Lords,  p.  109. 


Parliament  303 

While  it  is  true  that  fourteenth-century  peers  at- 
tended what  we  may  venture  to  call  the  House  of 
Lords  because  they  received  writs  of  summons  from 
the  king,  it  should  be  remembered  that  they  were 
barons  by  tenure  already.  The  writs  did  not  make 
them  barons;  to  use  the  old  terminology,  they  made 
them  major  barons,  or,  in  language  more  suited  to  the 
time,  the  writs  did  not  determine  who  should  be 
barons — which  was  still  a  matter  of  tenure — but  which 
of  the  barons  should  be  Peers  of  the  Realm.  As  all 
the  peers  were  barons,  it  was  natural  that  the  inher- 
itance of  the  dignity  of  a  peer  should  be  regulated  by 
the  rules  which  applied  to  the  inheritance  of  fiefs. 
Hence  in  default  of  male  heirs,  the  dignity  might  pass, 
like  the  barony,  to  an  heiress.  No  peeress  was  ever 
summoned  to  the  House  of  Lords,  but  she  might  confer 
upon  her  husband  a  presumptive  right  to  the  king's 
writ  of  summons.  In  the  later  middle  ages,  there  were 
many  instances  in  which  the  husbands  of  such  heiresses 
were  summoned  to  Parliament  as  peers. 

A  change  took  place  in  the  fifteenth  century  which 
eventually  brought  to  an  end  this  method  of  trans- 
mitting a  peer's  dignity  and  which  was  the  last  im- 
portant step  in  the  creation  of  the  modern  House  of 
Lords.  It  had  become  the  practice,  by  the  end  of  the 
fourteenth  century,  to  create  titles  of  dignity  by  letters 
patent;  these  were  open  letters  which  differed  from 
charters  only  in  their  less  formal  attestation.  The 
title  of  earl  had  been  conferred  in  this  way  since 
Stephen's  reign,  and  the  new  titles  of  duke  and  mar- 
quess were  so  conferred  in  the  late  fourteenth  century, 
and  viscount  in  the  fifteenth.  In  the  letter  creating 
the  title,  it  was  possible  to  regulate  the  succession  of  the 


304        Period  of  Constitution  Making 

title.  In  1387,  was  the  first  and,  for  a  long  time,  the 
only  instance  of  the  creation  of  a  baron  by  letter 
patent ;  this  baron  was  also  declared  by  the  letter — and 
it  was  the  object  of  his  being  created  baron — an  her- 
editary lord  of  Parliament.  Such  creations  became 
common  in  the  reign  of  Henry  VI.  It  was  a  time  of 
bitter  strife  among  the  nobility,  and  it  was  often 
found  useful  for  the  party  for  the  moment  in  power  to 
be  able  to  raise  men  to  the  peerage  who  did  not  happen 
to  be  barons.  By  the  end  of  the  century,  it  had  become 
the  normal  method  of  creating  peers.  The  king  could, 
in  the  letters  patent,  regulate  the  succession  in  any 
way  he  chose;  but  in  practice,  the  title  was  made  to 
pass  to  male  heirs  only,  and  that  under  the  principle 
of  primogeniture.  The  advantages  of  the  new  system 
were  obvious:  heiresses  could  no  longer  confer  the 
dignity  of  a  peer  upon  their  husbands  and  thus  carry 
it  into  new  families  which  might  not  be  agreeable  to 
the  king  or  the  existing  peerage,  and  the  king  was  now 
able  not  only  to  make  a  baron  a  peer,  but  any  one  whom 
he  chose.  It  seems  clear  however  that  these  advan- 
tages were  not  fully  recognised  at  first;  immediate 
objects  seem  to  have  furnished  the  motives  for  the 
change,  especially  during  Henry  VI.  's  reign  when  the 
letters  patent  were,  so  to  speak,  becoming  the  fashion. 
A  gradual  recognition  of  the  broader  advantages  kept 
them  in  fashion.  It  is  obvious  that  through  the  use 
of  letters  patent  the  term  baron  would  gradually  lose 
all  of  its  old  feudal  meaning. 1 

Here  a  query  necessarily  arises  concerning  the  spirit- 
ual lords.     No  principles  of  inheritance  could  apply 

1  On  the  subject  of  the  new   titles  of  dignity  and  the  letters 
patent,  see  Stubbs,  Constitutional  History,  §  428. 


Parliament  305 

to  them.  How  were  they  faring  during  these  changes  ? 
Bishops  and  abbots  had  been  summoned  to  the  king's 
feudal  court,  the  larger  Curia  Regis,  by  virtue  of  the 
baronies  they  held,  that  is,  because  they  were  tenants- 
in-chief.  They  were  major  barons  in  the  twelfth- 
century  sense;  and  they  were  wise  and  influential,  and 
hence  important  as  counsellors.  As  the  king's  will 
became  a  greater  and  greater  factor  in  determining 
who  were  to  be  major  barons,  the  bishops  still  received 
the  writs  of  summons  with  practically  unbroken  uni- 
formity; their  greatness,  tenurially  and  otherwise, 
placed  them  beyond  question.  But  with  the  abbots 
and  priors  who  were  barons,  the  king  exercised  the  same 
capriciousness  as  with  the  lay  barons  of  corresponding 
importance.  Also,  as  with  the  lay  barons,  the  capri- 
ciousness decreased  under  Edward  III.;  certain  abbots 
and  priors  were  known  as  scarcely  ever  summoned. 
The  abbots  as  a  class  were  rather  disinclined  to  attend. 

When  the  barons  began  to  call  themselves  peers, 
the  prelates  were  considered  as  fully  peers  as  the  lay 
barons,  for  the  technical  basis  of  their  attendance  was 
precisely  the  same.  This  continued  to  be  the  case 
until  well  along  in  the  fifteenth  century.  But  a 
different  conception  finally  arose  as  a  result  of  the 
clergy's  inability  to  share  fully  the  judicial  work  of  the 
House  of  Lords.1  They  could  not  be  present  when 
judgment  was  passed  involving  loss  of  life  or  limb,  for 
the  canons  forbade  it ;  and  they  held  aloof  from  their 
right  to  be  tried  by  their  peers  through  their  strict 
adherence  to  the  principle  that  no  lay  court  could  try 
them.  Hence  the  idea  gradually  took  shape  that  they 
could  not  be  regarded  as  peers,  while  they  were  certainly 

»  See  above,  pp.  201-203. 

30 


306        Period  of  Constitution  Making 

lords  of  Parliament.  In  1692,  when,  because  of  the 
dissolution  of  the  monasteries,  the  bishops  had  for 
long  been  the  only  prelates  in  the  House  of  Lords, 
a  formal  declaration  was  made  by  that  House  to  the 
effect  that  bishops  were  not  peers,  but  only  lords  of 
Parliament.  The  fifteenth-century  change  from  writs 
of  summons  to  letters  patent  could  have  no  effect  upon 
the  prelates,  for  no  letters  patent  could  create  them; 
their  right  to  attend  the  House  of  Lords  always  drew  its 
sanction  from  their  ancient  baronies. 

The  number  of  lay  lords  summoned  during  the  four- 
teenth and  fifteenth  centuries  averaged  from  forty  to 
fifty  or  a  little  over ;  the  spiritual  lords  numbered  about 
fifty.  But  often,  especially  during  the  Wars  of  the 
Roses,  the  number  of  lay  members  fell  considerably 
below  this,  leaving  the  prelates  in  a  majority.  The 
dissolution  of  the  monasteries  in  the  next  century 
gave  a  permanent  majority  to  the  lay  members. 

2 .  Why  there  was  a  Middle  Class  in  England.  Origin 
of  Popular  Election  and  its  Connection  with  Representa- 
tion.— Having  seen  the  structural  transformation 
of  the  Curia  Regis  into  the  House  of  Lords,  we 
begin  here  the  study  of  the  House  of  Commons  by 
enquiring  into  the  conditions  which  made  possible  the 
adding  of  new  elements  to  the  changing  central  assem- 
bly. The  addition  was  made  in  the  thirteenth  cent- 
ury and  the  new  elements  represented  a  great  middle 
class.  What  was  this  middle  class  ?  It  will  be  remem- 
bered that  at  the  time  of  the  Norman  Conquest  English 
society  was  in  a  peculiarly  unsettled  condition.  Many 
freemen  were  being  depressed  in  status  and  were 
taking  on  characteristics  of  servility.  With  some,  the 
change  had  gone  so  far  that  they  might  well  be  ranked 


Parliament  307 

with  the  servile  classes;  others  were  in  a  doubtful, 
intermediate  position.  Unquestionably  forces  were 
in  operation  which  looked  toward  that  complete  dis- 
integration of  the  non-noble,  free  class  which  was 
taking  place  upon  the  continent.  But  the  important 
point  to  note  here  is  that  the  process  had  not  been  com- 
pleted in  England  and  that  the  Norman  Conquest  was 
reached  with  a  considerable  body  of  non-noble  freemen, 
a  true  middle  class,  still  existent.  The  immediate 
effect  of  Norman  clear  thinking  and  vigorous  action 
upon  the  broad  Anglo-Saxon  class  which  lay  between 
the  manifestly  servile  and  the  noble  was  to  push  many 
individuals  farther  down  than  they  had  been  before, 
and,  on  the  other  hand,  to  render  the  free  status  of  the 
remainder  more  distinct.  Surviving  the  Conquest, 
and,  in  a  manner,  created  by  it,  was  a  well-defined  class 
of  non-noble  freemen.1 

A  second  source  of  the  later  middle  class  lay  in  the 
lower  orders  of  the  nobility.  These  consisted  of  the 
numerous  small  tenants-in-chief,  the  so-called  minor 
barons,  and  the  small  sub-tenants  of  the  king's  greater 
vassals,  or,  where  the  feudal  hierarchy  extended  so 
far,  the  tenants  of  sub- tenants.  Any  of  these  might  hold 
only  a  single  knight's  fee,  or  perhaps  not  even  the  land 
requisite  to  a  knight  and  be  reckoned  as  esquires.  As 
the  twelfth  century  progressed,  a  split  appeared  in  the 

1  The  free  classes  outside  the  boroughs  are  particularly  in  mind 
here,  for  it  was  in  that  part  of  the  population  that  the  principles 
of  representation  and  election,  which  gave  rise  to  the  House  of 
Commons,  had  their  origin.  But  it  should  be  remembered  that  the 
burgesses  were  largely  of  free  origin,  and  that  burgage  tenure  was  a 
variety  of  free  socage,  the  characteristic  tenure  of  the  non-noble 
free  classes.  For  an  account  of  class  conditions  in  the  twelfth 
century,  see  above,  pp.  80-85. 


308        Period  of  Constitution  Making 

nobility;  the  interests  of  these  smaller  holders  were 
becoming  differentiated  from  those  of  the  greater 
barons.  The  strong  Norman  and  Angevin  kings,  who 
made  wars  to  cease  and  kept  order  in  the  country,  were 
cutting  the  lesser  nobles  off  from  their  feudal  activities. 
Fighting  with  their  neighbours  was  the  normal  occu- 
pation of  small  feudatories;  if  they  could  not  do  this, 
there  was  nothing  left  but  to  stay  at  home  and  attend 
to  their  estates.  The  possibility  of  increased  revenue 
from  their  estates  began  to  suggest  itself  to  them;  the 
financial  side  of  their  position  absorbed  more  of  their 
attention;  they  were  soon  on  the  way  to  pure  land- 
lordism. This  change  brought  them  into  closer  contact 
with  the  class  next  below  them,  and  their  interests 
became  more  identified  with  their  localities.  There 
thus  began,  as  early  as  the  twelfth  century,  the  process 
by  which  the  lower  orders  of  the  nobility  in  England 
voluntarily  dissociated  themselves  from  the  higher 
nobility  and  approached  the  non-noble  freemen. 

Besides  these  results  of  their  stern  rule,  there  must 
be  noted  also  the  effect  upon  the  whole  nobility  of 
what  may  possibly  be  termed  a  policy  of  the  post- 
Conquest  kings.  They  were  able  to  keep  any  class  of 
the  nobles  from  attaining  such  immunities  or  privileges 
as  to  differentiate  it  in  the  eyes  of  the  law  from  the 
other  freemen. 

Our  law  hardly  knows  anything  of  a  noble  or  of  a  gentle 
class;  all  free  men  are  in  the  main  equal  before  the  law. 
For  a  moment  this  may  seem  strange.  A  conquered  coun- 
try is  hardly  the  place  in  which  we  should  look  for  an 
equality,  which,  having  regard  to  other  lands,  we  must  call 
exceptional.  Yet  in  truth  it  is  the  result  of  the  Conquest, 
though  a  result  that  was  slowly  evolved, 


Parliament  309 

With  the  strange  complex  of  classes  left  from  Anglo- 
Saxon  times,  a  strong  king  could  do  what  he  pleased: 

.  .  .  he  can  make  his  favour  the  measure  of  nobility; 
they  are  noble  whom  he  treats  as  such.  And  he  does  not 
choose  that  there  shall  be  much  nobility.  Gradually  a 
small  noble  class  is  formed,  an  estate  of  temporal  lords, 
of  earls  and  barons.  The  principles  which  hold  it  together 
are  far  rather  land  tenure  and  the  king's  will  than  the  trans- 
mission of  noble  blood.  Its  members  have  political  privi- 
leges which  are  the  counterpart  of  political  duties ;  the  king 
consults  them,  and  is  in  some  sort  bound  to  consult  them, 
and  they  are  bound  to  attend  his  summons  and  give  him 
counsel.  They  have  hardly  any  other  privileges.  During 
the  baron's  life  his  children  have  no  privileges;  on  his  death 
only  the  new  baron  becomes  noble. J 

But  this  is  using  the  word  noble  in  a  narrow  and  very 
English  sense.  The  formation  of  this  new  and  limited 
nobility  will  be  readily  recognized  as  the  evolution 
of  the  House  of  Lords.  It  was  a  nobility  that 
did  not  tend  to  increase,  for  the  title  went  only  with 
the  tenure  and  the  tenure  was  becoming  strictly 
primogenitary. 

The  early  prevalence  of  the  primogenitary  principle 
was  also  a  result  of  the  Norman  Conquest.  Primo- 
geniture originated  in  feudalism.  The  overlord  wanted 
a  certain  and  undivided  source  to  which  he  might 
look  for  the  service  owed  by  the  fief;  the  vassal  would 
naturally  divide  his  holding  equally  among  his  sons. 
Owing  to  this  clash  of  interests,  the  growth  of  primo- 
geniture was  slow  and  was  not  completely  established 
in  Normandy  at  the  time  of  the  Conquest.  The  Nor- 
man kings  of  England  had  far  more  vassals  than  any 

1  P.  and  M.  i.,  408,  409. 


3  io        Period  of  Constitution  Making 

other  English  overlord  and  were  therefore  more  in- 
terested in  the  enforcement  of  the  principle.  They 
were  strong  enough  to  enforce  it,  and  were  strong 
enough  not  to  be  afraid  to  enforce  it,  that  is,  they  had 
no  vassals  so  powerful  that  they  were  tempted  to 
favour  some  principle  of  partition  in  order  to  weaken 
them.  Thus  England  got  in  advance  of  the  other 
countries  of  western  Europe  in  the  adoption  of  primo- 
geniture as  the  rule  of  succession  in  the  land  law;  and 
the  younger  sons  of  barons  lacked  both  the  baronial 
tenure  and  the  baronial  title.  They  went  to  swell  the 
class  of  lower  nobility,  which  in  England  is  properly 
termed  gentry,  a  word  which  indicates  nobility.  For 
the  gentry  were  of  noble  blood  and  performed  only 
honourable  services  for  their  lords.  In  any  country 
but  England,  they  would  have  been  reckoned  every 
whit  as  noble  as  the  greatest  barons.  But  the  strong 
kings  in  England  had  formed  at  the  top  of  the  general 
body  of  nobles  a  select  number,  who,  being  the  only 
ones  in  possession  of  political  and  legal  privileges, 
came  finally  to  be  reckoned  the  only  nobles.  Thus 
the  gentry  were  distinguished  from  the  non-noble 
freemen  only  by  their  noble  blood,  which  carried  with 
it  the  social  privilege  of  wearing  coat-armour,  a 
practice  which  arose  in  the  twelfth  century.1 

The  characteristic  member  of  the  class  of  gentry  was 
the  knight.  But  the  younger  sons  of  a  knight  might 
never  attain  to  knighthood  either  in  tenure  or  title. 

>  It  must  not  be  supposed,  of  course,  that  the  kings  contributed 
to  this  change  with  the  conscious  intent  of  fashioning  a  unique 
nobility  in  England;  they  acted  merely  as  it  suited  their  immediate 
purposes  to  deal  from  time  to  time  with  this  important  part  of 
their  population.  The  thing  was  done  before  it  was  clearly  under- 
stood what  was  done. 


Parliament  311 

Title  is  mentioned,  for  there  were  knights — often 
those  knighted  on  the  field  of  battle — who  were  not 
holders  of  the  knight's  fee;  on  the  other  hand,  there 
were  those  who  possessed  knight's  fees  who  had  never 
been  dubbed  knights.  The  divorce  between  tenure 
and  status 1  showed  itself  everywhere,  and  inter- 
marriage might  easily  occur  between  gentle  and  simple ; 
notwithstanding  the  use  of  coat-armour  the  line  be- 
tween the  gentry  and  the  non-noble  freemen  was  often 
blurred,  and  there  was  a  much  sharper  line  of  demarca- 
tion between  the  greater  and  lesser  nobles.  Upon  the 
continent,  there  was  an  impassable  gulf  between  the 
pettiest  noble  and  the  class  below;  in  England,  there 
was  a  much  slighter  chasm  at  this  point  with  many 
means  of  crossing. 

The  sources  of  a  substantial  middle  class  in  England 
(without  taking  into  account  the  borough  population) 
may  now  be  summarised:  a  non-noble,  free  class  sur- 
vived the  Anglo-Saxon  period;  the  Conquest  resulted 
in  making  the  status  of  a  portion  of  that  class  more 
distinctly  free;  there  were  many  small  nobles  after  the 
Conquest;  the  masterful  post-Conquest  sovereigns  de- 
prived these  nobles  of  their  important  feudal  charac- 
teristics, made  them  landlords  in  close  touch  with 
their  localities  and  the  class  below  them;  royalty  also 
allowed  no  legal  advantages  to  the  nobles  as  a  whole, 
but  made  a  small  class  of  hereditary  counsellors  a 
nobility  in  a  special  sense,  and  finally  the  only  nobility ; 
the  gentry,  thus  lacking  the  name  and  distinguishing 
marks  of  a  nobility,  more  readily  approached  local  in- 
terests and  the  class  of  freeholders,  and  the  movement 
was  further  aided  by  the  characteristic  English  divorce 

i  See  above,  p.  84 


312        Period  of  Constitution  Making 

between  tenure  and  status  and  the  early  triumph  of 
primogeniture. 

In  the  second  half  of  the  twelfth  century,  the 
local  activity  of  knights  and  freeholders  in  judi- 
cial and  revenue  matters  strikingly  illustrates  the 
common  interests  of  the  two  classes  and  probably 
itself  contributed  to  their  approach.  In  it  lay  the 
origin  of  the  machinery  which  eventually  suggested 
the  calling  of  local  representatives  to  the  centre.  With 
its  consideration,  we  take  up  the  second  part  of  our  gen- 
eral theme ;  having  noted  the  conditions  which  brought 
forth  a  true  middle  class,  we  next  consider  the  line  of 
development  which  led  to  its  representation  in  a  central 
assembly.  When  Henry  II.  incorporated  the  sworn 
inquest  in  the  procedure  of  the  royal  courts  and  out- 
lined the  work  of  a  presenting  jury,  he  furnished  an 
appropriate  sphere  of  activity  for  a  middle  class,  a 
class  acquainted  with,  and  interested  in,  the  affairs 
of  the  locality. *  The  sources  leave  one  in  no  doubt 
as  to  the  classes  employed  upon  these  early  juries; 
they  nearly  always  specify  knights  or  free  and  lawful 
men.  Towards  the  end  of  the  century,  the  language 
often  indicates  that  knights  were  preferred.  These 
men  were  regarded  as  representing  the  knowledge  and 
opinion  of  their  neighbourhood;  indeed,  their  repre- 
sentative character  when  they  acted  in  these  capacities 
was  always  marked. 

But  the  sworn  inquest  in  its  original,  non-judicial 
character  also  continued,  and,  though  no  longer  called 
inquisitio,  was  receiving  a  great  extension  about  the 
end  of  the  twelfth  century.  In  the  Assize  of  Arms, 
1181,  a  jury  of  "lawful  knights  or  other  free  and  lawful 

«  See  above,  pp.  144,  145. 


Parliament  313 

men"  were  to  assess  their  neighbours'  wealth  with  a 
view  to  determining  their  proper  military  equipment.1 
This  was  in  principle  the  same  thing  as  to  assess  them 
for  taxation.  By  the  Ordinance  of  the  Saladin  Tithe, 2 
1 1 88,  the  same  method  of  assessment  was  to  be  used 
when  a  man  was  suspected  of  having  paid  less  than  he 
ought.  In  this  instance,  the  machinery  was  used  in 
connection  with  a  true  tax;  and  from  this  time,  as- 
sessing juries  were  increasingly  employed  for  the  new 
personal  property  taxes.  The  itinerant  justices'  com- 
mission of  IIQ43  shows  the  great  variety  of  the  in- 
formation elicited  from  the  knights  and  lawful  men  of 
the  hundreds,  much  of  it  of  a  non-judicial  character. 
In  this  same  document,  is  the  first  distinct  mention 
of  coroners,  who  had  probably  been  in  existence  since 
some  time  in  the  reign  of  Henry  II.  The  coroner  was 
then  in  the  first  stage  of  his  development,  a  minor  local 
justice  who  disposed  of  many  small  criminal  cases  and 
held  preliminary  hearings  on  more  important  ones 
preparatory  to  the  visitation  of  the  justices.4  The 
coroners  were  regularly  drawn  from  the  class  of 
knights.  Thus  there  is  much  evidence  that,  if  the 
knights  had  withdrawn  from  the  camp  and  the  court, 
they  were  finding  plenty  to  do  at  home,  and  that  the 
king  regarded  them  and  the  class  next  below  them  as 
most  useful  in  developing  his  court  system,  his  revenue, 
and  the  general  efficiency  of  his  local  control. 

In  these  dealings  with  the  great  middle  class,  the 
kings  were  developing  little  by  little  a  representative 
machinery  and  were  certainly  becoming  conscious 
of  it  as  such.  But  all  this  activity  was  at  the  king's 

1  A.  and  S.,  p.  24.  *  Ibid.,  document  21. 

2  Ibid.,  p.  28.  *  See  above,  pp.  188,  189. 


314        Period  of  Constitution  Making 

initiative,  and  though  the  country  was  much  benefited 
by  the  increasing  governmental  work  and  efficiency, 
there  was  no  immediate  prospect  of  an  independent 
representative  body.  For  these  early  local  representa- 
tives were  always  appointed  by  a  power  above  them. 
This  might  not  detract  from  their  purely  representa- 
tive character,  but  no  system  of  representation  can 
be  sure  of  remaining  such  unless  the  appointing  power 
lies  with  the  people  represented.  Another  develop- 
ment must  take  place  before  popular  representation  in 
a  modern  sense  was  even  remotely  possible. 

The  first  approaches  to  an  election  by  the  people 
are  to  be  found  in  the  very  late  twelfth  century.  The 
juries  of  the  Assizes  of  Clarendon  and  Northampton 
were  probably  selected  by  the  sheriffs ;  but  in  the  com- 
mission given  the  itinerant  justices  in  1194,  great  care 
was  taken  to  specify  how  the  jury  should  be  chosen: 
"In  the  first  place,  four  knights  are  to  be  chosen" 
(probably  still  by  the  sheriff)  "from  out  of  the  whole 
county,  who,  upon  their  oaths,  are  to  chose  two  lawful 
knights  of  every  hundred  and  wapentake,  and  those 
two  are  to  chose  upon  their  oath  ten  knights  of  every 
hundred  or  wapentake,  or,  if  there  shall  not  be  knights 
sufficient,  free  and  lawful  men,  in  order  that  these 
twelve  may  together  make  inquisition  on  each  of  the 
following  heads  in  every  hundred  or  wapentake."1 
This  method  appears  to  have  been  a  transition  from 
the  entire  control  of  the  sheriff  to  true  popular  elec- 
tion. The  reference  to  the  coroners  in  this  same  docu- 
ment is  in  these  words:  "Also  in  every  county  there 
are  to  be  three  knights  chosen,  and  one  clerk,  who 
are  to  be  keepers  of  the  pleas  of  the  crown."  In  all 

•  A-  &ndS.,  p.  29. 


Parliament  315 

the  later  known  history  of  the  coroner,  the  office  was 
elective,  and  it  is  probable  that  at  this  time  the  coroners 
were  chosen  in  the  county  courts.1  This  seems  to 
have  been  the  earliest  connection  between  the  local 
use  of  representative  knights  for  governmental  pur- 
poses and  popular  election.  By  the  time  of  Magna 
Carta,  nearly  twenty  years  after,  the  transition  had 
been  completed,  and  undoubted  instances  are  found 
of  the  popular  election  of  knights  for  various  local 
purposes.  In  article  18  of  the  Charter,  there  is  mention 
of  "four  knights  of  each  county,  elected  by  the  county," 2 
who  were  to  act  with  the  itinerant  justices  in  holding 
the  possessory  assizes.  The  last  word  in  the  quotation 
might  well  be  translated  "county-court,"  as  the  Latin 
comitatus  means  that  also,  and  the  county  court  was 
the  only  assembly  through  which  the  county  could  act. 
In  article  48  of  the  same  document,  in  providing  for 
an  inquisition  into  the  bad  forest  customs,  it  says  that 
these  "shall  be  enquired  into  immediately  in  each 
county  by  twelve  sworn  knights  of  the  same  county, 
who  shall  be  elected  by  the  honest  men  of  the  same 
county."  This  language  admits  of  no  doubt  that  there 
was  popular  election  in  the  county  courts.  As  a  final 
example,  and  one  of  much  significance  because  it  relates 
to  the  use  of  knights  in  assessing  and  collecting  a  tax, 
the  language  of  a  writ  of  1220  for  collecting  a  carucage 

1  "The  machinery  for  the  election  of  coroners  seems  to  have  been 
the  mould  which  shaped  the  representation  of  the  shires  in  parlia- 
ment; the  coroners  were  prototypes  of  the  parliamentary  knights 
of  the  shire.     Elected  knights  of  the  shire  were  also  employed  for 
other  local  purposes,  but  in  a  more  casual  or  transitory  way  than 
in  the  case  of  the  coroner.    .This  latter  office  was  a  permanent  insti- 
tution, which  must  have  helped  to  habituate  the  nation  to  the  idea 
of  county  representation." — Gross,  Select  Coroners'  Rolls,  p.  xxxv. 

2  A.  and  S.,  p.  45. 


316        Period  of  Constitution  Making 

may  be  cited.  It  is  addressed  to  the  sheriff  of  each 
county. 

.  .  .  two  shillings  are  to  be  collected  by  your  own 
hand  and  the  hands  of  two  of  the  more  lawful  knights  of 
your  county,  who  shall  be  chosen  to  do  this  by  the  will  and 
counsel  of  all  of  the  county  in  full  county  court.  And 
therefore  we  bid  you  and  firmly  and  strictly  enjoin  you 
that,  after  the  convocation  of  the  full  court  of  your  county, 
by  the  will  and  consent  of  those  of  the  county,  you  cause 
to  be  chosen  two  of  the  more  lawful  knights  of  the  whole 
county  who  shall  best  know  how,  wish,  and  be  able  to 
attend  to  this  business  to  our  advantage,  and  when  these 
have  been  associated  with  you,  you  shall  immediately  cause 
this  gift  to  be  assessed  throughout  your  whole  bailiwick 
and  collected  from  each  carrucate.  .  .  . l 

This  identical  method  of  assessing  and  collecting  a  tax 
was  far  from  permanent,  but  the  use  of  local  knights 
for  these  purposes  was  permanent  and  was  big  with 
possibilities. 

Why  had  the  king  changed  the  method  of  selecting 
the  knights  who  were  attending  to  his  various  local 
concerns?  Probably  because  of  his  inveterate  distrust 
of  the  sheriff.  The  Norman  kings  had  never  been 
wholly  satisfied  with  the  sheriff.  They  had  kept  this 
part  of  the  Anglo-Saxon  system  as  something  which 
promised  to  be  useful  in  conducting  and  safeguarding 
the  king's  interests;  but  the  sheriff  was  resident  in  his 
shire,  and  was  usually  a  great  noble  with  landed  and 
other  interests  there;  he  was  consequently  subject  to 
the  influences,  always  potent  in  the  middle  ages,  which 
tended  to  destroy  the  really  public  character  of  the 
resident  official.  Henry  I.  and  Roger  of  Salisbury  had 

'  A.  and  S.,  document  30. 


Parliament  3 1 7 

invented  the  itinerant  justice  to  oversee  the  sheriff  and 
take  part  of  his  work  from  him.  The  shortcomings  of 
the  sheriffs  in  Henry  II. 's  time  and  what  the  king 
thought  of  them  is  well  shown  in  the  famous  ' '  Inquest 
of  the  Sheriffs"1;  and  although  fewer  great  nobles  were 
appointed  to  the  office  afterwards,  the  possibility  that 
public  interests  would  be  neglected  for  private  inter- 
ests still  existed.  The  knights  or  other  freemen,  when 
chosen  for  the  purposes  just  discussed,  were  doing 
king's  business;  they  might  be  called  upon  to  tell  the 
truth  about  the  goings  of  the  sheriff  himself.  Doubtless 
the  king  came  to  feel  that  some  form  of  popular  choice 
was  a  safer  way  of  obtaining  these  representative  men 
and  of  being  certain  of  an  unbiassed  statement  from 
them.  A  machinery  was  in  existence,  independent  of 
the  sheriff,  for  learning  the  truth  about  local  af- 
fairs, getting  at  the  locality's  needs,  and  hearing  its 
complaints. 

3.  Origin  of  County  Representation  in  a  Central  As- 
sembly.— Having  seen  the  many  local  uses  to  which 
the  king,  by  means  of  the  jury  device,  was  putting  the 
knights  and  other  freemen,  the  next  development  to  be 
examined  is  the  gathering  together  of  local  juries  at 
some  central  point  and  the  earliest  connections  of  such 
concentrated  juries  with  the  Curia  Regis.  A  chroni- 
cler's account  of  something  that  was  done  in  August, 
1213,  has  usually  been  interpreted  as  indicating  the 
first  instance  of  a  concentration  of  juries.  The  writ 
of  summons  itself  is  not  extant,  and  either  the  text  of 
the  chronicle  is  corrupt  or  the  writer  gave  a  confused 
account  of  what  took  place.2  That  the  king  used 

1  A.  and  S.,  document  15. 

»  For  the  text,  see  Stubbs,  Select  Charters,  p.  276. 


318        Period  of  Constitution  Making 

juries  on  this  occasion  to  assess  the  damage  which  he 
had  done  the  bishops'  property  is  certain,  but  whether 
or  not  it  was  his  intention  that  these  juries  should  come 
together  at  St.  Albans  and  state  the  facts  there  it 
seems  impossible  to  determine. *  There  is  no  evidence 
that  they  actually  came  together,  while  there  is  much 
to  the  contrary.  But  it  is  of  almost  equal  importance 
to  know  whether  the  idea  of  concentration  had  sug- 
gested itself  to  the  king.  Whether  or  not  it  had  done 
so  in  August,  there  is  good  evidence  that  it  had  three 
months  afterwards.  In  November  this  writ  was 
issued : 

The  king  to  the  sheriff  of  Oxfordshire,  greeting.  We 
direct  you  to  cause  all  the  knights  of  your  bailiwick,  who 
have  been  summoned  to  appear  before  me  at  Oxford  on 
All  Saints'  Day,  to  come  in  fifteen  days  with  their  arms; 
but  all  the  barons  to  come  in  like  manner  unarmed:  and 
that  you  cause  four  discreet  men  of  your  county  to  meet 
us  there  at  the  same  time  to  consult  with  us  about  the 
affairs  of  our  realm. 

Witness  myself  at  Witney,  the  seventh  day  of  November. 

Similar  writs  were  directed  to  all  the  sheriffs. 2 

The  unarmed  barons  referred  to  evidently  constituted 
the  larger  Curia  Regis.  There  is  no  evidence  that  this 
proposed  assembly  met;  if  it  had,  it  would  have  been 
of  more  significance  than  that  of  August,  for  here  was 
county  representation,  the  business  seems  to  have  been 

1  H.  W.  C.  Davis,  English  Historical  Review  xx.,  pp.  289,  290, 
thinks  that  the  juries  were  consulted  as  usual  in  their  localities  and 
that  the  sheriffs  brought  the  verdicts  to  the  St.  Albans  meeting; 
G.  J.  Turner,  ibid,  xxi.,  297-299,  believes  that  it  was  the  intention 
to  bring  together  at  St.  Albans  juries  drawn  from  the  bishops'  es- 
tates, not  from  the  royal  domain,  as  has  been  the  usual  reading. 

*  A.  and  S.,  document  27. 


Parliament  319 

of  a  general  character,  and  some  connection  between 
county  representatives  and  Curia  Regis  was  apparently 
contemplated.  But  at  any  rate,  a  concentration  of 
juries  had  actually  been  thought  of. 

So  long  an  interval  intervened  before  the  next  in- 
stance of  concentration  that  the  case  or  cases  of  1213 
surely  could  not  have  served  as  precedents.1  But  the 
practices  and  ideas  which  had  made  them  possible 
still  continued,  indeed  grew  more  vigorous,  and  were 
certain,  sooner  or  later,  to  produce  like  results.  County 
representation  in  a  central  assembly  had  its  historical 
origin  in  1254;  by  this  is  meant  that  from  that  time 
there  was  a  sufficiently  continuous  use  of  the  practice 
to  indicate  that  there  was  no  later  invention  of  it.2 
Henry  III.  was  in  Gascony;  an  aid  was  to  be  levied 
and  the  money  sent  to  him.  While  the  writs  were  in 
the  king's  name,  the  assembly  was  summoned  on  the 
authority  of  the  queen  and  the  Earl  of  Cornwall,  "in 
the  belief,"  says  Stubbs,  "that,  as  the  bishops  had 
refused  to  grant  money  without  consulting  the  bene- 
ficed  clergy,  the  surest  way  to  obtain  it  from  the  laity 
was  to  call  an  assembly  on  which  the  promise  of  a 
renewal  of  the  charters  would  be  likely  to  produce  the 
effect  desired."  The  language  of  the  summons  should 

1  It  may  be  argued  from  this  that  they  are  of  little  consequence: 
the  continuous  use  of  the  device  does  not  date  from  them;  they  do 
not  represent  its  historical  discovery.     But  they  indicate  the  degree 
of  development  and  familiarity  reached  by  the  practices  and  ideas 
out  of  which  the  new  institution  grew,  and  it  is  no  small  thing  in 
understanding  the  origin  of  an  institution  to  know  the  point  at 
which  it  was  potentially  present. 

2  That  the  smallness  of  the  assessing  juries  suggested  the  feasi- 
bility  of  concentration   is   altogether  probable.     They   ordinarily 
consisted  of  two  individuals,   while  the  judicial   juries  were,   of 
course,  much  larger. 


320        Period  of  Constitution  Making 

be  noticed.  The  following  clauses  are  taken  from  the 
writ  sent  to  the  sheriff  of  the  counties  of  Bedford  and 
Buckingham : 

...  we  straitly  command  you,  that  besides  all  those 
aforesaid,  you  cause  to  come  before  our  council  at  West- 
minster on  the  fifteenth  day  after  Easter  next,  four  lawful 
and  discreet  knights  from  the  said  counties  whom  the 
said  counties  shall  have  chosen  for  this  purpose,  in  place  of 
all  and  singular  of  the  said  counties,  that  is,  two  from  one 
county,  and  two  from  the  other,  who,  together  with  the 
knights  from  the  other  counties  whom  we  have  summoned 
for  the  same  day,  shall  arrange  what  aid  they  are  willing 
to  pay  us  in  our  need. 1 

Here  were  two  knights  from  each  county,  whose  repre- 
sentative and  elective  character  is  made  particularly 
clear,  formally  summoned  in  the  king's  name  to  come 
before  his  council  and  negotiate  the  levying  of  an  aid. 
The  council  before  which  they  were  summoned  was 
evidently  the  smaller  Curia  Regis.2  Though  the  speci- 
fic date,  1254,  may  be  used  to  mark  the  technical 
beginning  of  county  representation  by  elected  knights, 
the  foregoing  discussions  have  been  wasted  if  they 
have  not  shown  how  that  event  was  gradually  led  up 
to  by  the  growth  of  ideas  and  institutions  throughout 
the  preceding  century,  and  that  what  was  actually 
new  in  the  event  of  1254,  though  very  important,  was 
very  small. 

By  a  peculiar  coincidence,  the  word  parliamentum 

1  A.  and  S.,  document  33. 

»  See  the  first  part  of  the  writ  for  the  loc  ation  and  occupation 
of  the  general  body  of  tenants-in-chief  at  the  time.  Moreover,  the 
fuller  meeting  would  not  have  been  referred  to  in  the  words  consilio 
nostro. 


Parliament  321 

had  come  into  use  in  connection  with  the  work  of  the 
Curia  Regis  only  a  few  years  before  this.  But  it  is 
very  essential  to  have  in  mind  the  long  evolution 
which  lay  before  the  -word  before  it  had  acquired  the 
meaning  with  which  one  is  familiar  to-day.  Parlia- 
mentum  was  a  quite  common  medieval  Latin  word, 
derived  from  the  ancient  popular  Latin,  and  meant  a 
talking  or  colloquy,  especially  one  of  a  formal  sort  and 
concerning  a  matter  of  importance.  Speaking  of  its 
use  as  late  as  the  end  of  Edward  I.'s  reign,  Maitland 
says: 

A  parliament  is  rather  an  act  than  a  body  of  persons. 
One  cannot  present  a  petition  to  a  colloquy,  to  a  debate. 
It  is  only  slowly  that  this  word  is  appropriated  to  colloquies 
of  a  particular  kind,  namely,  those  which  the  king  has 
with  the  estates  of  his  realm,  and  still  more  slowly  that  it 
is  transferred  from  the  colloquy  to  the  body  of  men  whom 
the  king  has  summoned.  As  yet  any  meeting  of  the  king's 
council  that  has  been  solemnly  summoned  for  general  busi- 
ness seems  to  be  a  parliament.  .  .  .  The  personification 
of  "  parliament,"  which  enables  us  to  say  that  laws  are  made 
by,  and  not  merely  in,  parliament,  is  a  slow  and  subtle 
process.1 

There  is  no  single  word  or  phrase  which  can  ade- 
quately describe  the  confused  parliamentary  fore- 
shadowings  of  the  thirteenth  century;  this  would  seem 
to  make  it  logically  imperative,  at  every  mention  of 
them,  to  enter  into  long  and  repetitious  explanations. 
On  practical  grounds,  it  will  be  expedient  to  occasion- 
ally use  the  word  Parliament  in  a  kind  of  anticipatory 
sense,  its  substance  yet  being  imperfect. 

The  precedent  of  1254  was  not  lost.     In  1261,  during 

1  Introduction  to  Memoranda  de  Parliamento.  p.  Ixvii.  and  note  i. 


322        Period  of  Constitution  Making 

the  civil  war,  Simon  de  Montfort  summoned  three 
knights  from  each  county  to  consult  upon  matters  of 
common  interest,  and  the  king  issued  writs  with  the 
intention  of  drawing  these  same  knights  to  a  colloquy 
(colloquium}  on  the  royal  side.  In  June,  1264,  de 
Montfort  again  summoned  knights,  this  time  four  from 
each  county, '  'chosen  to  represent  the  whole  county  with 
the  assent  of  the  county  ...  to  deal  with  us  concerning 
the  business  mentioned."  In  December  of  the  same 
year,  de  Montf ort's  famous  Parliament  was  summoned — 
famous  because,  in  addition  to  two  knights  from  each 
county,  the  sheriffs  were  ordered  to  return  two  citizens 
from  each  city  and  two  burgesses  from  each  borough. 
Here  was  something  new;  the  other  representative 
element,  which,  together  with  the  representative  knights 
of  the  shire,  was  eventually  to  constitute  the  House  of 
Commons,  made  its  first  appearance.  It  is  necessary 
to  examine  in  the  next  place  the  conditions  and  cir- 
cumstances which  lay  behind  borough  representation. 
4.  Condition  of  the  Boroughs  in  the  Thirteenth  Cent- 
ury, and  the  Origin  of  their  Representation  in  a  Central 
Assembly.. — We  have  seen  the  boroughs  of  the  twelfth 
century  striving  for  various  liberties  and  immunities, 
their  general  object  apparently  an  institutional  iso- 
lation such  as  was  attained  in  some  places  by  the  con- 
tinental cities.1  By  the  middle  of  the  thirteenth 
century,  there  were  borough  governments  of  the  most 
diverse  types,  with  perhaps  a  general  oligarchic  tend- 
ency. The  corporate  character  of  the  older  and  larger 
boroughs  was  more  pronounced,  and  their  government 
was  in  the  hands  of  a  limited  circle  of  burgesses  or 
magistrates;  in  many  of  the  newer  and  smaller  towns, 

«  See  above,  Part  II.,  §  II.,  3. 


Parliament  323 

the  government  was  still  very  popular,  and  in  some  it 
ever  remained  so.1 

But  more  closely  related  to  the  present  subject  is 
the  question  of  how  far  the  boroughs  had  succeeded  in 
catting  themselves  off  from  outside  control,  from  the 
general  government  of  the  country.  Here  also  were 
various  conditions,  which  grew  out  of  the  struggles  and 
negotiations  between  the  boroughs  and  their  overlords ; 
for  the  dispositions  and  abilities  of  the  overlords  to 
retain  control  over  the  borough  governments  were 
extremely  diverse.  "Some  were  almost  independent 
republics,  some  were  mere  country  townships  that 
had  reached  the  stage  at  which  they  compounded 
severally  for  their  ferm,  but  were  in  all  other  respects 
under  the  influence  of  the  sheriff  and  the  county 
court." 2  But  the  important  fact  is  that  the  boroughs, 
as  a  class,  had  not  by  this  time  progressed  so  far  upon 

1  "Any  complete  generalisation  upon  the  constitutional  history 
of  the  towns  is  impossible  for  this  reason,  that  this  history  does  not 
start  from  one  point  or  proceed  by  the  same  stages.  At  the  time 
at  which  they  began  to  take  a  share  in  the  national  counsels  through 
their  representatives,  the  class  of  towns  contained  communities 
in  every  stage  of  development,  and  in  each  stage  of  development 
constituted  on  different  principles.  Hence,  by  the  way,  arose  the 
anomalies  and  obscurities  as  to  the  nature  of  the  constituencies, 
which  furnished  matter  of  deliberation  to  the  House  of  Commons 
for  many  centuries,  and  only  ended  with  the  Reform  Act  of  1832. 
The  varieties  of  later  usage  were  based  on  the  condition  in  which 
the  borough  found  itself  when  it  began  to  be  represented."  The 
matter  "is  noticed  here  in  order  to  show  that  the  obscurity  of  the 
subject  is  not  a  mere  result  of  our  ignorance  or  of  the  deficiency  of 
record,  but  of  a  confusion  of  usages  which  was  felt  at  the  time  to 
be  capable  of  no  general  treatment ;  a  confusion  which  .  .  .  pre- 
vailed from  the  very  first,  and  occasioned  actual  disputes  ages  before 
it  began  to  puzzle  the  constitutional  lawyers."  Stubbs,  Constitu- 
tional History  of  England,  §  211. 

*Ibid.,  §  213. 


324        Period  of  Constitution  Making 

the  road  to  independence  as  to  make  the  obtaining  of 
their  representation  impossible,  or  to  give  that  repre- 
sentation, if  obtained,  such  exclusiveness  and  esprit  de 
corps  that  it  could  not  co-operate  with  the  representa- 
tives of  any  other  part  of  the  population.  The  king 
still  demanded  the  boroughs'  representation  by  twelve 
burgesses  in  those  full  meetings  of  the  county  courts 
convened  by  the  sheriffs  for  the  itinerant  justices,  thus 
to  some  extent  holding  them  under  the  royal  jurisdic- 
tion. The  sheriffs  enforced  the  Assize  of  Arms  within 
them,  and  led  their  military  levies  as  part  of  the.  na- 
tional militia.  And  there  existed  among  the  boroughs 
no  leagues  or  combinations  by  which  they  could  secure 
a  common  understanding  or  action. 

Juries  had  been  used  for  obtaining  information,  and 
specifically  for  assessment  purposes,1  inside  the  bor- 
oughs as  well  as  out ;  and  the  regular  representation  of 
boroughs  in  the  great  eyre  courts,  where  such  varieties 
of  business  were  transacted,  may  well  have  suggested 
to  Simon  de  Montfort  the  possibility  of  their  representa- 
tion in  a  central  assembly.2  The  real  moving  cause 
which  led  him  to  cast  about  for  such  an  expedient  was 
undoubtedly  the  weakness  of  his  hold  upon  the  upper 

1  See  Assize  of  Arms,  art.  9,  A.  and  S.,  p.  24. 

2  It  is  interesting  to  note  that  these  local  courts  contained  all  the 
elements  which  constituted  the  later  Parliament.     But  Parliament 
was  not  being  modelled  after  them  for  the  simple  reason  that  no  one 
was  consciously  creating  Parliament.     A  part  of  the  first  clause  of 
a  writ  to  assemble  such  a  court  in  1231  reads:  "The  king  to  the 
sheriff  of  Yorkshire,  Greeting.     Summon  by  good  summoners  all 
archbishops,  bishops,  abbots,  priors,  earls,  barons,  knights,   and 
all  freeholders  from  your  bailiwick,  from  each  vill  four  lawful  men 
and  the  reeve,  and  from  each  borough  twelve  lawful  burgesses, 
throughout  your  whole  bailiwick,  and  all  others  who  are  accustomed 
and  ought  to  appear  before  the  justices  itinerant.  .  .  ." — Ibid., 
document  31. 


Parliament  325 

classes.  He  sought  to  counterbalance  this  by  getting 
the  support  of  the  middle  and  lower  classes,  and  es- 
pecially this  burgher  class  which  might  prove  very 
useful  financially.  It  is  hardly  necessary  to  state  that 
de  Montfort's  "parliaments"  were  not  national  as- 
semblies, but  meetings  of  the  adherents  and  representa- 
tives of  a  party  at  a  time  when  the  country  was  divided 
in  civil  strife.  But  the  machinery  of  borough  repre- 
sentation in  a  central  assembly  was  not  lost,  and  credit 
for  the  idea  must  always  be  given  to  Simon  de  Mont- 
fort.1  Of  its  future  use  in  true  Parliaments  or  of  the 
nature  and  importance  of  this  new  institution,  Par- 
liament itself,  he  had,  of  course,  no  more  conception 
than  any  of  his  contemporaries. 

Having  up  to  this  point  dealt  entirely  with  ante- 
cedent conditions  and  causes  and  the  bare  beginnings 
of  what  may  be  termed  an  embryonic  Parliament,  the 
subject  now  broadens  and  three  rather  general  divisions 
naturally  suggest  themselves:  first,  the  external  history 
of  the  institution,  the  history  of  its  form  and  com- 
position through  the  critical  changes  of  its  early  years 
until  it  attained  some  stability  in  these  respects 
and  had  developed  the  characteristic  features  which 
were  the  foundation  of  its  success;  secondly,  the 
electorate  through  the  first  century  and  a  half  of 
Parliament's  life;  thirdly,  how  Parliament  became 
conscious  of  itself,  developed  its  great  powers,  and 

1  Professor  Adams  believes  that  "borough  representatives  would 
have  been  summoned  to  the  great  council  by  the  close  of  the  century 
if  Simon's  writs  had  never  been  issued  and  for  reasons  very  different 
from  those  which  influenced  his  action."  His  grounds  for  this 
opinion  are  the  rapidly  growing  importance  of  the  boroughs  in  the 
thirteenth  century  and  the  fact  that  the  "stricter  feudal  ideas  "  were 
passing  away 


326        Period  of  Constitution  Making 

started  upon  its  work  of  creating  a  government  by 
the  people. 

5.  Form  and  Composition  of  Parliament  from  1265  to 
the  Middle  of  the  Fourteenth  Century. — The  thirty  years 
from  Simon  de  Montfort's  Parliament  of  1265  to  the 
so-called  Model  Parliament  of  1295  was  a  critical  and 
experimental  period  in  the  life  of  the  young  institution. 
It  might  perhaps  be  more  truly  said  that  there  was  no 
new  institution  until  1295  or  thereabouts;  there  was  no 
concept  of  it  as  such  in  the  minds  of  the  men  of  that 
generation.  They  knew  only  of  certain  new  practices 
and  devices,  the  questioning  of  groups  of  locally  elected 
representatives  about  taxation  and  other  matters  in 
which  the  king  was  interested. 

To  show  how  wholly  lacking  was  the  idea  of  a  new 
assembly  of  any  definite  form,  it  is  necessary  only  to 
glance  at  the  practice  of  the  period.  In  the  assembly 
of  1273,  were  present  the  three  elements  necessary  to  a 
Parliament  in  the  later  sense :  the  larger  Curia  Regis,  at 
this  time  verging  towards  a  House  of  Lords;  repre- 
sentatives of  the  shires;  representatives  of  the  cities 
and  boroughs.  But  since  the  purpose  of  this  assembly 
was  merely  to  swear  allegiance  to  the  new  sovereign, 
one  especially  hesitates  to  call  it  a  Parliament.  The 
sources  are  not  clear  upon  the  make-up  of  the  first  as- 
sembly of  1275;  certainly  there  was  a  meeting  of  the 
barons l  in  that  year,  and  the  language  of  some  of  its 
enactments  indicates  that  representative  elements  were 
also  present ;  but  such  language  was  often  used  loosely, 

1  The  term  "barons"  is  used  here  and  in  a  number  of  later  in- 
stances as  a  relief  from  the  cumbrous  "larger  Curia  Regis."  It  thus 
includes  those  greater  tenants-in-chief  to  whom  the  king  was  sending 
writs  of  summons.  The  prelates  were,  of  course,  barons  in  the  sense 
that  they  held  baronies. 


Parliament  327 

and,  the  summoning  writs  not  being  extant,  it  is  im- 
possible to  tell  just  what  was  meant.  At  a  second 
meeting  of  the  same  year,  the  representatives  of  the 
shires  were  certainly  present,  and  it  is  interesting  to 
note  that  this  was  the  first  assembly  in  Edward  I.'s 
reign  to  make  a  money  grant.  In  1 283,  there  were  two 
very  peculiar  assemblies.  Most  of  the  nobles  were 
with  the  king  on  the  Welsh  campaign ;  hence  the  first, 
which  met  in  January  in  two  divisions,  one  at  York 
and  the  other  at  Northampton,  was  without  the  baron- 
age. It  consisted  of  representatives  of  the  shires  and 
boroughs.  To  these  were  added  representatives  of 
the  cathedral  clergy.  The  purpose  of  this  was  un- 
doubtedly financial;  it  was  characteristic  of  Edward 
I.,  who  aimed  at  a  broad  representative  basis  for  his 
money  grants,  and  was  consistent  with  the  whole 
representative  movement  of  the  thirteenth  century. 
These  representative  clergy  were  not  considered  a 
regular  part  of  a  lay  assembly  in  1283,  but  such  a  use 
of  clerical  representation  was  not  without  precedent, 
as  will  be  presently  seen.  The  two  places  of  meeting, 
north  and  south,  seem  to  have  been  suggested  by  the 
Convocations  of  Canterbury  and  York.  It  is  par- 
ticularly interesting  to  note  that  it  was  regarded  as 
nothing  extraordinary  for  knights  and  burgesses  to 
meet  and  transact  business  in  the  absence  of  the  no- 
bility. A  second  assembly  of  this  year  met  in  Septem- 
ber, at  Shrewsbury  on  the  Welsh  border.  Thus  the 
nobles,  who  were  still  under  arms  against  the  Welsh, 
could  be  present,  and  to  them  were  added  representa- 
tives of  the  shires  and  of  certain  specified  boroughs. 
The  main  object  mentioned  in  the  writs  was  to  judge 
David  of  Wales,  but  it  was  added  that  "other  matters" 


328        Period  of  Constitution  Making 

were  also  to  be  attended  to.  The  statute  De  Mer- 
catoribus  or  Acton  Burnell  was  dated  October  the 
twelfth  at  Acton  Burnell,  and  was  the  product  of  the 
deliberations  of  the  burgesses  who  had  withdrawn  to 
that  place  from  the  Shrewsbury  assembly.  But  its 
language  retained  the  stereotyped  form,  "the  king  by 
himself  and  his  council  hath  ordained,"  etc.1  This 
second  assembly  of  1283  is  then  noteworthy  in  not  con- 
taining any  clergy — apparently  because  its  business 
did  not  concern  them — and  in  its  dividing,  the  nobles 
remaining  at  Shrewsbury  to  perform  their  more  proper 
function  in  judging  the  Prince  David  while  the  burgesses 
withdrew  to  another  place  to  deal  with  a  commercial 
matter.  The  king  was  making  use  of  a  machinery  for 
getting  together  and  consulting  various  classes  of  his 
population ;  he  used  it  as  time  and  occasion  required ; 
he  was  certainly  not  consciously  fashioning  a  general 
assembly;  on  the  contrary,  he  seems  to  have  usually 
adhered  to  the  idea  that  that  which  concerned  only  one 
class  should  be  dealt  with  by  that  class  alone.  Early 
in  1290,  a  meeting  of  the  barons  acted  upon  the  purely 
feudal  matter  of  granting  the  king  an  aid  incident  to 
the  marriage  of  his  oldest  daughter.2  Later  in  the 
year,  this  same  body  made  the  famous  statute  of  Quia 
Emptores,  a  statute  which  especially  concerned  the 

1  A.  and  S.,  document  41.     In  this  use  of  the  word  council,  where 
consilium  seems  really  to  mean  a  body  of  men  rather  than  the  counsel 
which  was  given,   was  undoubtedly  indicated  the  smaller  Curia 
Regis.     This  body  was  then  taking  on  such  technical  and  definable 
characteristics  that  it  may  soon  be  considered  an  independent  and 
self-conscious  assembly.     See  above,  pp. 287-290. 

2  Though  here  were  feudal  nobles  acting  on  a  feudal  matter,  it 
should  be  remembered  that  there  were  very  many  tenants-in-chief 
who  might  be  held  for  the  aid  who  would  not  be  found  in  the  larger 
Curia  Regis  as  it  was  then  constituted, 


Parliament  329 

greater  landholders.  Late  in  the  year,  there  were 
added  representatives  of  the  shires,  apparently  for  the 
sole  purpose  of  negotiating  a  money  grant.  In  1294, 
there  was  a  meeting  of  the  barons  and  the  representa- 
tives of  the  shires.  The  purpose  was  largely  financial, 
and  a  "tenth"  was  granted.  The  towns  were  also  tal- 
laged  at  this  time,  but  they  were  dealt  with  separately 
through  commissioners.  Late  in  1295,  after  an  earlier 
meeting  of  the  barons,  was  summoned  the  great  as- 
sembly distinguished  in  later  history  as  the  Model 
Parliament. 

It  is  probable  that  the  use  of  the  term  Model  Parlia> 
ment  has  led  to  the  popular  ascription  to  Edward  I. 
of  ideas  and  purposes  quite  in  advance  of  any  which 
he  ever  entertained.  It  is  proper  to  remember  this 
Parliament  and  its  date  as  marking  an  epoch  in  par- 
liamentary history;  but  such  use  is  subject  to  the  danger 
always  attendant  upon  fixing  any  event  as  marking  an 
epoch,  an  exaggeration  of  its  epoch-making  character. 
The  impelling  motive  which  led  Edward  I.  to  summon 
such  an  inclusive  and,  from  a  later  point  of  view,  model 
assembly  was  the  financial  pressure  of  the  unprece- 
dented combination  of  wars  which  he  had  on  hand.  He 
needed  money  as  never  before,  and  he  used  the  means 
to  obtain  it  which  the  experience  of  the  past  thirty 
years  and  his  instincts  as  a  practical  statesman  sug- 
gested. He  needed  the  help  of  all  classes  and,  as  far 
as  conditions  allowed,  he  took  them  all  into  his 
confidence.  It  can  hardly  be  thought  that  the  repre- 
sentative elements  were  really  asked  to  give  their  con- 
sent to  taxation,  but  their  good  will  could  be  gained 
and  consultation  with  them  certainly  facilitated  assess- 
ment and  collection.  There  was  no  grand  theorizing, 


33°        Period  of  Constitution  Making 

and  the  high-sounding  adaptation  from  the  Theodosian 
Code  to  be  found  in  the  summons  to  the  clergy  was 
probably  the  insertion  of  a  clerical  official  in  the  Chan- 
cery. 1  To  suppose  it  a  great  principle,  weighed  and 
enunciated  by  Edward  I.,  would  be  at  variance  with 
the  actual  happenings  and  with  the  spirit  of  preceding 
and  succeeding  history.  The  Parliament  of  1295  was 
simply  a  great  fact,  great  in  itself,  and  made  particu- 
larly prominent  by  the  national  crisis  which  occasioned 
it;  it  worked  by  its  own  weight,  and,  fitting  in  aptly 
with  the  contemporary  trend  of  events,  it  was  not  for- 
gotten and  became  one  of  the  greatest  precedents  in 
English  constitutional  history.  The  king  had  been  un- 
consciously working  towards  the  use  of  the  representa- 
tive principle  in  national  affairs  during  the  past  thirty 
years  and  more.  Now  events  seemed  to  demand  a  com- 
pleter  application  of  that  principle  than  before,  and  the 
great  emphasis  thus  placed  upon  it  permanently  affected 
both  king  and  people.  With  practically  no  uniformity  in 
the  application  of  this  principle  to  national  assemblies 
before  1295,  it  must  not  be  understood  that  there  was  a 
close  approach  to  uniformity  afterwards,  but  merely 
that  a  long  step  had  been  taken  in  that  direction.2 

1  "As  a  most  just  law,  established  by  the  careful  providence  of 
sacred  princes,  exhorts  and  decrees  that  what  affects  all,  by  all 
should  be  approved,  so  also,  very  evidently  should  common  danger 
be  met  by  means  provided  in  common." — A.  and  S.,  p.  82.  See 
Riess,  Geschichte  des  Wahlrechts  zum  englischen  Parlament  im  Mit- 
telalter,  pp.  1-14,  for  a  discussion  of  this  clause  and  the  author's 
conception  of  the  true  object  of  early  representation  in  Parliament. 
For  the  writs  of  summons  to  the  Model  Parliament,  see  A.  and  S., 
document  46.  Particular  attention  should  be  paid  to  the  last 
paragraph  of  the  summons  of  county  and  borough  representatives, 
where  the  purpose  and  spirit  with  which  they  were  summoned  is 
clearly  shown. 

J  The  king  dealt  with   individual   elements  occasionally  after 


Parliament  331 

The  Model  Parliament  contained  the  body  of  pre- 
lates and  greater  barons  which  was  becoming  the  House 
of  Lords.  The  lay  members  of  this  body  numbered 
forty-eight  in  this  meeting,  seven  earls  and  forty-one 
barons  below  the  rank  of  earl.  The  prelates,  sum- 
moned by  virtue  of  their  baronial  tenure,  comprised  the 
two  archbishops,  eighteen  bishops,  sixty-seven  abbots, 
and  the  heads  of  three  religious  orders,  the  Hospitallers, 
Templars,  and  the  Order  of  Sempringham.  The  bishops 
were  ordered  to  cite  beforehand  (pramunientes) i  the 
deans  or  priors  of  their  cathedral  chapters,  the  arch- 
deacons of  their  dioceses,  one  representative  proctor 
from  each  chapter,  and  two  representative  proctors 
from  the  parish  clergy  of  each  diocese.  Besides  the 
clergy  and  the  nobility,  this  Parliament  contained  a 
representation  of  the  thirty-seven  shires  then  in  exis- 
tence by  two  knights  each  and  of  one  hundred  and  ten 
cities  and  boroughs  by  two  citizens  or  burgesses  each. 

A  pause  must  be  made  here  for  some  explanation  of 
the  comparatively  new  element  appearing  in  the  Model 
Parliament,  the  representative  clergy.  While,  during 
the  thirteenth  century,  the  representative  principle 
was  being  applied  to  lay  assemblies,  the  clergy  had 
been  perfecting  a  system  by  which  the  Convocations 
of  their  two  great  archiepiscopal  provinces,  Canterbury 
and  York,  were  becoming  bodies  quite  perfectly  repre- 
senting all  classes  of  their  order.  In  taxing  the  clergy, 

1295.  Note  the  instance  in  1372  when  the  citizens  and  burgesses 
"were  commanded  to  tarry  "  after  the  dismissal  of  the  knights. — A. 
and  S.,  document  81.  The  last  instance  in  which  the  Lords  met 
alone  was  in  the  seventeenth  century. 

•The  clause  introduced  by  this  word,  which  has  always  been 
retained  in  the  writ  summoning  the  bishops,  is  often  spoken  of  as 
the  prcemunientes  clause.  See  A.  and  S.,  p.  83. 


33  2        Period  of  Constitution  Making 

the  king  occasionally  made  use  of  this  machinery, 
which  he  found  ready  to  his  hand,  just  as  he  used  an 
analogous  machinery  in  taxing  the  laity.  It  is  not 
the  place  here  to  study  in  detail  the  origin  and  growth 
of  Convocation,  but  certain  of  its  features  must  be 
noticed  in  order  to  understand  the  early  history  of 
Parliament. 

Before  the  thirteenth  century,  there  were  two  prin- 
cipal ecclesiastical  assemblies:  diocesan  synods,  which 
were  quite  exhaustive  meetings  of  all  the  clergy  of 
the  diocese;  and  provincial  synods  attended,  in  each 
of  the  archiepiscopal  provinces,  by  the  bishops,  some  of 
the  abbots,  and  later  the  archdeacons.  Until  the  thir- 
teenth century,  as  far  as  the  clergy  had  been  consulted 
at  all  concerning  money  grants,  there  had  been  negotia- 
tion by  the  royal  officials  with  the  individual  dioceses, 
sometimes  undoubtedly  through  the  diocesan  synods. 
But  this  had  been  much  more  a  matter  of  demanding 
and  collecting  than  of  consulting  or  asking  consent. 
If  there  were  to  be  a  real  consultation  of  the  clergy, 
it  must  be  in  a  body  where  concerted  and  effective 
action  of  the  higher  clergy  would  be  possible,  namely, 
in  the  provincial  synod.  The  intense  opposition  to 
John's  misrule  and  exactions  made  it  necessary  for 
him  to  treat  the  clergy  with  more  consideration,  and 
he  was  the  first  king  to  make  any  approach  toward  a 
consultation  of  the  provincial  synods  on  money  grants. 
The  stand  taken  by  certain  bishops  against  the  unusual 
aid  proposed  in  the  last  year  of  his  brother's  reign 
shows  that  the  time  was  ripe  for  such  a  development. 
It  was  the  new  importance  attaching  to  the  provincial 
synods,  as  bodies  consulted  in  matters  of  taxation,  that 
led  to  their  development  into  representative  Convoca- 


Parliament  333 

tions  in  the  course  of  the  century.  In  1225,  proctors 
representing  the  cathedral  chapters  and  the  monasteries 
were  added  to  the  old  elements.  But  the  parochial 
clergy  were  not  represented  till  1283,  although  more 
ihan  once  before  this  such  representation  had  been 
virtually  demanded  by  the  refusal  of  the  represented 
elements  to  bind  the  unrepresented  in  the  matter  of 
a  money  grant.  In  1283,  the  organisation  was  com- 
pleted; all  elements  of  the  clergy  were  either  present 
in  person  or  by  representatives,  and  the  two  old  pro- 
vincial synods  had  become  two  representative  Con- 
vocations. These  usually  met  at  the  same  time  and 
were  often  thought  of  and  spoken  of  as  the  Convocation 
of  the  whole  church. 

These  Convocations  consisted  of  the  following,  who 
attended  in  person:  bishops,  abbots,  priors,  the  deans 
of  cathedral  and  collegiate  churches,  archdeacons,  and 
the  heads  of  certain  religious  orders.  The  representa- 
tive elements  were  the  two  proctors  from  each  diocese, 
representing  the  parish  clergy,  and  one  proctor  for  each 
cathedral  and  collegiate  chapter.  Of  course  Convoca- 
tion was  a  purely  ecclesiastical  body  in  purpose  and 
make-up,  although  the  king  might  consult  it  on  civil 
matters,  especially  taxation.  But  during  the  same 
century  that  this  body  was  coming  into  existence,  a 
parallel  and  related  development  was  in  progress  which 
culminated  in  the  complete  ecclesiastical  representa- 
tion in  the  Parliament  of  1295.  The  king  was  showing 
a  greater  and  greater  inclination  to  summon  clergy  to 
lay  assemblies,  but  the  manner  of  summons  and  the 
elements  summoned  were  largely  determined  by  the 
contemporary  development  of  the  Convocations.  Twice 
in  the  reign  of  John  were  representative  clergy  sum- 


334        Period  of  Constitution  Making 

moned  to  his  councils:  the  first  time,  abbots  for  the 
monastic  clergy;  the  second  time,  the  deans  for  the 
cathedral  chapters.  It  is  not  to  be  supposed  that 
John  intended  to  make  them  a  regular  part  of  his 
council,  any  more  than  in  1254  did  Eleanor  and  the 
Earl  of  Cornwall  intend  to  make  the  knights;  but  if 
the  thing  were  done  enough  times  and  proved  a  suffi- 
ciently helpful  expedient,  it  might  result  in  that  in  the 
one  case  as  well  as  in  the  other.  Simon  de  Montfort 
summoned  the  cathedral  deans  to  his  Parliament  of 
1265,  and  there  were  a  few  other  cases,  which  it  is  not 
necessary  to  notice  individually,  before  the  very  im- 
portant one  of  1283.  It  can  be  understood  now  that 
the  importance  of  that  case  lay  largely  in  the  fact  that 
the  king  used  this  system  of  clerical  representation  in 
a  lay  assembly  in  the  very  year  that  it  was  perfected 
in  the  ecclesiastical  assemblies.  It  might  fairly  be 
expected  that  if  the  king  were  to  continue  the  lay  use 
of  the  system,  it  would  be  in  the  completed  form  which 
it  had  just  attained.  In  1294,  Edward  summoned  a 
practically  complete  assembly  of  the  clergy,  with  all 
the  representative  elements  then  used  in  Convocation, 
but  it  seems  to  have  met  at  a  different  time  from  the 
lay  portion  of  his  Parliament,  although  summoned 
for  substantially  the  same  purpose,  namely,  revenue. 
The  next  year  in  the  Model  Parliament,  the  full 
clerical  representation  was  summoned  at  the  same 
time  as  the  other  elements,  and  perhaps  with  the 
dawning  conception  that  all  these  elements  consti- 
tuted, for  the  time  being  at  least,  a  single  body. 
Thus  the  clergy  became  a  distinct  estate  in  the  em- 
bryonic Parliament;  part  of  them  were  present  as  a 
new  element,  purely  as  clergy,  while  the  prelates 


Parliament  335 

were  there   upon   the    old   ground  of  their  baronial 
tenure. 

In  studying  the  origin  of  the  English  Parliament,  one 
is  too  likely  to  pause  for  congratulation  at  the  date  1 295, 
as  if  the  great  institution  were  then  already  completed 
or  nearly  so.  It  should  not  be  forgotten  that  had 
Parliament  remained  what  it  was  in  that  year  there 
would  have  been  little  cause  for  congratulation. 
Certain  very  fundamental  changes  in  its  make-up  and 
internal  arrangement  must  take  place,  some  of  which 
appear  entirely  accidental,  before  it  could  become 
effective  in  winning  power  and  liberty  for  the  people. 
In  language  appropriate  to  the  ideas  of  the  time,  the 
Parliament  of  1295  me^  as  three  estates:  the  first  es- 
tate, clergy;  the  second  estate,  lay  nobility;  the  third 
estate,  burgesses.  The  first  estate  would,  of  course, 
include  the  prelates,  who  were  there  also  as  barons,  as 
well  as  the  representative  clergy.  If  the  second  estate 
comprised  all  lay  nobles,  it  must  include  not  only  the 
barons  but  the  representative  knights  of  the  shire  as 
well.  For  the  knights  were  technically  nobles,  and, 
though  they  came  distinctly  and  consciously  repre- 
senting the  counties  that  chose  them,  their  formal  and 
historical  position  seems  at  first  to  have  drawn  them 
to  the  barons  and  away  from  their  more  natural  as- 
sociates, the  burgesses.  Just  how  this  distinction  of 
estates  manifested  itself  in  the  Parliament  of  1295 
and  those  following  it  is  impossible  to  say.  *  Probably 

1  The  use  of  the  term  "parliament"  at  the  beginning  of  the 
fourteenth  century  is  admirably  illustrated  by  the  meeting  of  1305. 
Maitland  says  of  it:  "It  was  a  full  parliament  in  our  sense  of  that 
term.  The  three  estates  of  the  realm  met  the  king  and  his  council. 
The  great  precedent  of  1295  had  been  followed  and,  if  the  writs  of 
summons  were  punctually  obeyed,  the  assembly  was  a  large  one." 


336        Period  of  Constitution  Making 

the  different  elements  sat  in  different  parts  of  West- 
minster Hall;  at  any  rate  they  deliberated  and  acted 
separately.  If  the  mobile  material  of  1295  had  har- 
dened into  a  three-house  assembly  with  the  distribution 
of  elements  just  noted,  one  might  expect  its  failure  on 
at  least  two  grounds :  in  the  first  place,  three-house  as- 
semblies have  generally  proved  inefficient,  as  such — two 
of  the  houses  are  likely  to  intrigue  against  or  outweigh 
the  third,  and  an  assembly  ill-balanced  and  divided 
against  itself  results;  in  the  second  place,  if  the  knights 
were  to  continue  to  sit  with  the  barons,  it  left  the 
burgesses  the  only  true  representatives  of  the  non-noble 
class,  the  only  element  in  the  assembly  that  could  be 
termed  commons;  and  in  the  middle  ages,  the  urban 
population  was  not  of  sufficient  consideration  or 
strength  to  make  by  itself  a  struggle  for  constitutional 
liberty.  The  knights  would  have  been  left  in  an  un- 
natural and  ineffective  position;  and  these  representa- 
tive knights,  as  has  been  shown,  were  the  most  valuable 
and  English  of  all  the  elements  in  Parliament;  they 
stood  for  what  was  then  to  be  found  in  no  other  country, 
a  substantial  middle  class  outside  the  city  walls,  and 

It  was  opened  at  Westminster  on  the  28th  of  February.  "This 
assembly  was  kept  together  for  just  three  weeks.  On  the  zist  of 
March  a  proclamation  was  made  telling  the  archbishops,  bishops 
and  other  prelates,  earls,  barons,  knights,  citizens,  and  burgesses  in 
general  that  they  might  go  home,  but  must  be  ready  to  appear  again 
if  the  king  summoned  them.  Those  bishops,  earls,  barons,  justices, 
and  others  who  were  members  of  the  council  were  to  remain  behind 
and  so  were  all  those  who  had  still  any  business  to  transact.  But 
the  'parliament'  was  not  at  an  end.  Many  of  its  doings  that  are 
recorded  on  our  roll  were  done  after  the  estates  had  been  sent  home. 
The  king  remained  at  Westminster,  surrounded  by  his  councillors 
and  his  parliament  was  still  in  session  as  a  'full'  and  'general '  par- 
liament as  late  as  the  sth  and  6th  of  April." — Introduction  to 
Memoranda  de  Parliantento,  pp.  xxxv.,  xxxvi. 


Parliament  337 

without  that,  whatever  governmental  machinery  might 
be  in  process  of  formation,  no  constitutional  govern- 
ment could  have  been  evolved  and  maintained.  And 
unless  the  middle  class  outside  the  city  walls  could, 
through  its  representatives  in  Parliament,  unite  with 
the  middle  class  inside  the  city  walls  through  its  repre- 
sentatives, thus  forming  one  great  middle  class  with 
an  effective  representative  machinery,  there  could  be 
little  to  guarantee  the  rights  and  liberties  of  the  English 
commons  against  the  encroachments  of  nobility  and 
crown.  The  great  historic  English  Parliament  was  no 
foregone  conclusion  in  1295,  and  the  half-century  fol- 
lowing that  date  was  as  critical  as  the  half-century 
preceding. 1 

The  first  great  change  after  1295  was  the  withdrawal 
from  Parliament  of  the  clergy  as  an  estate.  It  hap- 
pened to  be  a  time  when  the  clergy  were  very  sensitive 
on  the  subject  of  taxation  by  the  state.  Boniface  VIII. 
was  pope,  whose  momentous  conflict  with  Philip  IV. 
of  France  was  opened  upon  this  very  issue.  The  clergy 
knew  that  the  king  summoned  them  to  a  lay  assembly 
that  he  might  the  more  readily  tax  them.  The  idea 
that  any  honour  attached  to  representative  member- 
ship in  such  an  assembly  was  foreign  to  the  time ;  there 
could  be  no  glory  attached  to  a  thing  which  did  not 

1  It  should  not  be  supposed  that  the  separation  of  the  lesser  from 
the  higher  nobility  was  complete  in  1295 :  if  it  had  been,  it  would  be 
difficult  to  account  for  the  position  taken  by  the  knights  when  sum- 
moned to  Parliament.  In  fact  it  was  just  at  this  time,  aided  by  the 
Statute  of  Quia  Emptores,  that  the  process  was  going  on  most 
rapidly.  Let  it  not  be  forgotten,  however,  that  it  was  not  in  any- 
thing belonging  to  this  immediate  period  that  this  most  fateful 
movement  had  its  source,  but,  as  has  been  shown  above  (pp.  307- 
3 1 1),  in  time  long  anterior  and  in  events  and  conditions  lying  at  the 
basis  of  English  history. 


33 8        Period  of  Constitution  Making 

exist,  and  Parliament  was  a  potentiality  rather  than 
an  actuality;  to  representative  clergy  or  laymen  or 
their  constituents  the  royal  summons  imposed  a  burden 
which  was  assumed  with  reluctance.  All  the  prejudices 
of  the  clergy  drew  them  away  from  this  kind  of  associa- 
tion with  laymen;  the  whole  trend  of  events  since  the 
Norman  Conquest  had  been  towards  separation  between 
clerical  and  lay  institutions  under  the  impulse  of  the 
"reform"  movements  on  the  continent.  The  clergy 
were  becoming  conscious  of  themselves  as  a  distinct 
and  superior  estate;  they  looked  down  upon  secular 
legislation  and  the  common  law.  Moreover  they  had 
just  perfected  their  own  Convocation,  where  they  could 
negotiate  taxes  equally  well  and  without  compro- 
mising their  dignity  by  becoming  members  of  a  secular 
assembly.  Their  reluctance  to  attend  Parliament  was 
probably  at  first  regarded  by  the  king  as  a  kind  of  in- 
surbordination ;  but  money  was  what  he  wanted  and, 
if  he  could  gain  that  as  well  from  Convocation,  he  was 
hardly  in  a  position  to  fight  out  a  purely  theoretical 
issue  with  them.  The  representative  clergy  began  to 
show  their  disinclination  to  come  to  Parliament  soon 
after  1295,  and  for  about  forty  years  the  king  made 
some  attempt  to  secure  their  presence;  then,  although 
the  pr&munientes  clause  was  retained  in  the  writs  to 
the  bishops  and  there  was  an  occasional  attendance  of 
a  few,  the  matter  ceased  to  be  an  object  with  the  king, 
and  the  clergy  in  their  Convocation  granted  subsidy  for 
subsidy  as  granted  by  Lords  and  Commons  in  Parlia- 
ment.1 

The  withdrawal  of  the  clergy  as  an  estate  left  Parlia- 
ment a  two-house  body.     The  clergy  who  remained, 

»  For  an  illustration,  see  A.  and  S.,  documents  66  and  67. 


Parliament  339 

the  bishops  and  part  of  the  abbots,  had  always  been 
members  of  the  larger  Curia  Regis;  they  remained  as 
barons,  not  as  clergy.  There  were  left  then  the  second 
estate  and  the  third  estate,  the  nobles  and  the  burgesses. 
Though  a  two-house  assembly  may  be  superior,  as 
such,  to  a  three-house  assembly,  yet  it  cannot  be 
effective  unless  there  is  some  degree  of  equality  between 
the  houses.  If  the  knights  continued  to  rank  them- 
selves with  the  nobility,  the  houses  of  this  English 
assembly  would  be  too  unevenly  matched  to  work  well 
together,  and  the  question  whether  the  knights  of  the 
shire  would  permanently  cast  in  their  lot  v/ith  the  lords 
or  with  the  burgesses  was  perhaps  the  most  critical 
in  the  whole  history  of  Parliament.  There  is  evidence 
of  uncertainty  upon  their  part  from  the  beginning  and, 
although  there  are  several  specific  instances  in  which  it 
is  known  that  they  sat  and  voted  subsidies  with  the 
barons,  and  this  may  be  fairly  considered  their  normal 
action  in  the  early  years,  they  sometimes  seem  to  have 
regarded  themselves  almost  as  a  separate  estate  and 
to  have  sat  and  voted  alone.  Their  first  distinct  ap- 
proach to  the  burgesses  was  to  join  them  in  petition 
while  still  voting  with  the  barons.  This  well  illus- 
trates their  situation:  they  were  naturally  with  the 
burgesses,  for  they  found  themselves  wanting  to  ask 
for  the  same  things,  while  formally  they  were  nobles 
and  in  formal  action  still  took  their  position  as  such. 
But  the  transition  once  started  did  not  require  long 
for  completion,  and  before  the  middle  of  the  fourteenth 
century  the  representative  knights  of  the  shire  were 
sitting  and  voting  with  the  representative  citizens  and 
burgesses.1  A  House  of  Commons  had  been  created. 
1  "  In  1341  the  'grantz '  and  the  commons  seem  to  have  definitely 


340        Period  of  Constitution  Making 

There  was  nothing  striking  or  spectacular  connected 
with  the  accomplishment  of  this  change,  one  of  the 
greatest  single  events  in  the  history  of  the  English 
government ;  it  was  the  inevitable  working  out  of  forces 
and  conditions,  some  of  them  centuries  old,  some  of 
them  recent,  but  very  numerous  and  working  silently 
and  irresistibly.  No  one  was  conscious  that  anything 
remarkable  was  taking  place.  We  pause  to  emphasise 
it  because  we  know  the  infinite  possibilities  for  good, 
not  only  to  the  English  people,  but  to  the  world  that 
lay  in  that  small  change. 

A  money  consideration  was  the  chief  immediate 
cause  of  this  transfer  of  the  knights.  They  felt  that, 
like  the  burgesses,  they  stood  for  the  poorer  parts  of 
the  community;  united  action  would  be  a  great  ad- 
vantage in  the  attempt  to  control  taxation,  and  this 
united  action  seemed  possible  and  not  entirely  un- 
natural as  the  result  of  all  previous  English  history. 
It  must  be  remembered  that  these  representatives 
were  not  legislators  or  counsellors  as  yet;  they  were  a 
concentration  of  juries  as  they  had  been  fifty  or  seventy- 
five  years  before.  And  what  were  the  uses  of  the 
primitive  jury?  Mainly  to  give  the  king  local  infor- 
mation bearing  on  his  revenue,  and  then  later  to 
help  and  advise  in  its  assessment  and  collection.  To 
be  sure  the  representatives  in  Parliament  in  the  early 
fourteenth  century  did  a  little  more  than  this ;  they  did, 
in  some  sort,  consent  to  taxation,  although  this  func- 
tion could  be  easily  overstated;  and  they  certainly 
furnished  the  king,  through  petition  and  otherwise, 

assorted  themselves  in  two  chambers;  and  in  1352  the  chapterhouse 
is  regarded  as  the  chamber  of  the  common?." — Stubbs,  Constitutional 
History  of  England,  §  426. 


Parliament  341 

with  local  information  which  proved  a  valuable  check 
upon  the  work  of  his  officials,  especially  the  sheriffs. 
These  he  still  distrusted  and  their  arrogant  and  oppres- 
sive behaviour  often  bore  heavily  upon  the  people. 
This  last-mentioned  use  of  representatives  was  rapidly 
increasing  in  importance.1 

6.  The  Electors,  the  Elected,  and  the  Election  in 
County  and  Borough  during  the  First  Two  Centuries  of 
Parliament. — Having  watched  the  form  and  make-up 
of  Parliament  through  the  tentative  and  changeable 
period  and  seen  the  beginnings  of  the  House  of  Lords 
and  the  House  of  Commons,  the  next  enquiry  is  natur- 
ally about  the  election  of  the  elements  which  have  come 
to  form  the  constitutionally  significant  part  of  Par- 
liament, the  lower  house.  The  ideas  of  representation 

1  Riess,  in  his  Geschichte  des  Wahlrechts  zum  englischen  Parla- 
ment,  ch.  i.,  regards  the  checking  and  controlling  of  the  royal  officials 
in  their  local  administration  as  the  first  object  with  Edward  I.  in 
summoning  local  representatives  to  Parliament;  he  believes  that  in 
Confirmatio  consent  to  taxation  was  not  extended,  except  in  a  purely 
formal  and  empty  manner,  beyond  tenants-in-chief,  but  that  this 
formal  consent  came  gradually  by  force  of  custom  and  favouring 
circumstances  to  have  a  real  significance.  See  also  Riess,  Der 
Ursprung  des  englischen  Unterhauses  in  Historische  Zeitschrift,  lx., 
J~33-  On  P-  3>  he  says:  "To  attain  a  genuine  and  regular  control 
of  the  local  administration  and  to  carry  out  especially  the  assess- 
ment and  collection  of  taxes  with  the  least  possible  friction  were  the 
most  substantial  reasons  for  which  Edward  I.  added  to  the  English 
constitution  as  a  perfected  and  enduring  institution  the  system  of 
representation  that  had  earlier  been  only  sporadically  connected 
with  it."  In  speaking  of  what  the  Commons  did  in  the  Parliament 
of  1305,  Maitland  says:  "The  king,  so  far  as  we  know,  did  not  ask 
them  for  money,  nor  did  he  desire  their  consent  to  any  new  law. 
The  doctrine  that  in  these  days  the  representatives  of  the  shires  and 
towns  were  called  to  parliament  not  in  order  that  they  might  act  in 
concert  on  behalf  of  the  commons  of  England,  but  in  order  that  each 
might  represent  before  the  king  in  council  the  grievances  and  the 
interests  of  the  particular  community,  county  or  borough ,  that  sent 


342        Period  of  Constitution  Making 

and  election  have  such  a  definite  content  in  modern 
times  that  there  are  few  matters  in  connection  with 
which  there  should  be  greater  care  in  clearing  the  mind 
of  preconceptions  than  in  dealing  with  the  early  phases 
of  these  practices.  We  have  noted  the  representative 
idea  in  connection  with  the  primitive  use  of  juries, 
have  seen  the  practice  of  electing  certain  kinds  of 
juries  in  the  county  courts  take  the  place  of  appoint- 
ment by  the  sheriff  or  other  royal  officer;  have  also 
seen  knights  elected  for  other  local  purposes,  and  how 
these  usages  finally  suggested  a  concentration  of  juries 
at  some  central  and  convenient  point.1  As  to  borough 
representation,  at  least  a  hint  of  its  origin  has  been 
seen  in  the  burgesses  sent  to  the  full  meeting  of  the 
county  court  assembled  for  the  itinerant  justices. 2 


him  thither,  may  easily  be  pressed  too  far,  but  we  shall  probably 
think  that  there  is  no  little  truth  in  it,  if  we  ask  what  the  knights 
and  burgesses  were  doing,  while  the  king  and  his  councillors  were 
slowly  disposing  of  the  great  mass  of  petitions,  many  of  which  were 
presented  by  shires  and  boroughs.  Official  testimony  the  council 
can  easily  obtain;  but  it  wants  unofficial  testimony  also;  it  desires 
to  know  what  men  are  saying  in  remote  parts  of  England  about  the 
doings  of  sheriffs,  escheators,  and  their  like,  and  the  possibilities  of 
future  taxation  have  to  be  considered.  Then  again  there  are  many 
appointments  to  be  made;  for  example,  it  is  the  fashion  at  this  time 
to  entrust  a  share  of  the  work  of  delivering  the  county  gaol  to  some 
knight  of  the  county,  very  often  one  of  the  knights  who  is  repre- 
senting or  has  represented  that  county,  at  a  parliament.  Without 
denying  that  the  germ  of  a  'house'  of  commons  already  exists, 
without  denying  that  its  members  hold  meetings,  discuss  their 
common  affairs  and  common  grievances,  .  .  .  we  may  still 
believe  that  the  council  often  gives  audience,  advice,  instructions 
to  particular  knights  and  burgesses.  After  all  we  shall  have  to  fall 
back  upon  the  words  of  the  writ  of  summons : — the  commoners  have 
been  told  to  come  in  order  that  they  may  do  what  shall  be  ordained." 
— Introduction  to  Memoranda  de  Parliamento,  pp.  Ixxv.,  Ixxvi. 
'  See  above,  pp.  312-320.  » Ibid,  p.  334. 


Parliament  343 

But  in  all  this,  nothing  has  been  said  of  the  manner  of 
election  or  the  way  in  which  it  was  regarded,  and  very 
little  of  the  personnel  of  the  elected. l  The  representa- 
tives of  the  shires  were  probably  always  knights  in  the 
very  early  Parliaments ;  but  the  burdens  of  representa- 
tion so  far  outweighed  any  advantages  that  seemed 
possible  that  those  whose  property  made  them  eligible 
to  knighthood,  through  the  provisions  of  the  Distraint 
of  Knighthood,  often  paid  the  fine  required  by  that 
act  rather  than  assume  the  local  duties  which  knight- 
hood entailed  or  risk  an  election  to  Parliament.  The 
result  was  that,  throughout  the  fourteenth  century, 
many  below  knightly  rank  were  returned  from  the 
counties.  No  positive  law  upon  the  subject  was  en- 
acted, but  the  kings  made  various  ineffectual  efforts  to 
have  knights  returned,  the  writs  of  summons  usually 
demanding  that  "belted"  knights  be  chosen.  Beyond 
this,  the  positive  requirements  and  disabilities  seem  to 
have  been  these:  the  county  representatives  must  be 
inhabitants  of  the  county  electing  them  and  must  be 
men  of  ability,  consideration,  and  substantial  property; 
and  in  the  fourteenth  century  statutes  were  passed 
excluding  sheriffs  and  lawyers  from  Parliament  on  the 
ground  that  with  them  more  particular  interests  than 
those  of  the  community  in  general  were  uppermost. 2 
A  statute  of  1445  summed  up  most  of  the  ideas  of  pre- 
vious times,  but  shows  that  the  king  had  had  to  con- 

1  Probably  not  much  detailed  information  upon  these  subjects 
will  ever  be  obtained.  For  the  fact,  already  often  emphasised, 
that  Parliament  had  an  obscure  and  unappreciated  beginning  goes 
far  to  account  for  the  lack  of  records  of  its  elections.  However, 
enough  has  been  ascertained  to  establish  with  some  certainty  the 
leading  features  of  the  elective  process. 

*  A.  and  S.,  document  80. 


344        Period  of  Constitution  Making 

cede  the  point  respecting  belted  knights.  It  states 
that ' '  the  knights  of  the  shire  for  the  parliament  . 
shall  be  notable  knights  of  the  same  counties  for  the 
which  they  shall  be  so  chosen,  or  otherwise  such  notable 
esquires,  gentlemen  of  birth  of  the  same  counties,  as 
shall  be  able  to  be  knights."  * 

The  knights  of  the  shire  (the  elected  representatives 
of  the  counties  had  come  to  be  called  such  whether 
they  were  actually  knights  or  not)  were  elected  in  the 
county  courts.  There  has  been  considerable  discussion 
as  to  whether  or  not  these  minor  tenants-in-chief ,  as  it 
may  be  supposed  most  of  the  county  representatives 
normally  were  at  the  beginning,  were  originally  elected 
solely  by  their  own  class  and  went  to  Parliament  as 
representatives  of  that  class.  There  has  seemed  to  be 
an  a  priori  logic  in  supposing,  when  the  minor  tenants- 
in-chief  ceased  as  a  class  to  receive  the  special  writs  of 
summons  and  elected  members  of  the  class  went  up 
from  the  counties,  that  their  class  only  was  concerned 
in  the  transaction.  The  theory  falls  to  the  ground 
however  when  tested  by  the  evidence  of  the  sources. 
In  all  the  local  activities  of  elected  knights,  activities 
which  suggested  and  led  to  representation  in  a  central 
assembly,  the  knights  were  certainly  regarded  as  stand- 
ing for  the  best  knowledge  and  judgment  of  the  whole 
community;  and  knights  were  very  often  associated 
in  this  work  with  the  non-noble  freemen  below  them, 
the  provision  appearing  repeatedly  that  when  there 
were  not  knights  sufficient  the  number  was  to  be  filled 
out  with  free  and  lawful  men. 2  Moreover,  the  business 

'  A.  and  S.,  document  125. 

»  For  examples,  see  art.  i,  Assize  of  Northampton,  A.  and  S., 
p.  20;  art.  9,  Assize  of  Arms,  ibid.,  p.  24;  the  commission  of  1194- 
ibid.,  p.  29. 


Parliament  345 

upon  which  they  were  employed  had  no  limitation  to  a 
single  class.  And  in  coming  to  the  later  representative 
activities  of  the  knights  in  Parliament,  the  language  is 
exceedingly  explicit  to  the  effect  that  they  were  to  be 
elected  in  full  county  court.  This  idea  is  expressed  so 
many  times  and  in  such  a  variety  of  ways  as  to  leave 
no  doubt  that  the  whole  court  was  supposed  to  be  con- 
cerned in  the  electing.1  There  is  no  doubt  then  that 
the  knights  went  up  to  Parliament  representing  all  the 
elements  of  the  county  as  found  in  the  county  courts. 

What  were  the  elements  in  the  county  court?  It  is 
impossible  to  answer  by  a  definite  enumeration ;  for  long 
before  this,  suit  of  court  had  become  attached  to  certain 
holdings  of  land,  and  the  tenants  of  these  were  bound 
to  this  duty  by  the  terms  of  their  tenure.  It  would  not 
often  be  the  large  meetings  of  the  county  courts,  sum- 
moned to  meet  the  justices,  that  elected  the  knights; 
only  forty  days  intervened  between  the  issue  of  the 
summoning  writs  and  the  meeting  of  Parliament;  so 
it  was  usually  the  ordinary  monthly  meeting  of  the 
court,  at  which  there  was  likely  to  be  but  a  small  at- 
tendance beyond  those  concerned  in  the  cases  to  be 
tried  and  those  who  served  on  the  juries.  There  would 
be  no  flocking  to  an  election  in  which,  in  the  nature  of 
things,  there  could  be  no  interest. 

As  to  the  electoral  process,  one's  mind  is  so  prepos- 
sessed by  the  whole  modern  paraphernalia  of  ballot- 
boxes  or  voting  machines,  election  judges,  accurate 
counts,  majorities,  and  pluralities,  that  he  is  likely  to 
forget  that  such  things  are  the  product  of  a  very  long 

1  See  the  first  summons  of  knights  to  a  central  assembly,  A.  and 
S.,  document  33;  and  the  anticipations  of  this  action  in  the  use  of 
knights  illustrated  by  document  30. 


346        Period  of  Constitution  Making 

evolution.  These  thirteenth  and  fourteenth  century 
elections,  which  antedate  party  and  interest  and  all 
consciousness  of  the  value  of  the  franchise,  may  seem 
unworthy  to  be  reckoned  popular  elections  at  all. 
Yet  modern  popular  elections  are  their  lineal  descend- 
ants. Names  were  probably  proposed  to  the  assembled 
court  by  the  sheriff  or  other  influential  man  of  the 
county.  If  they  met  with  approval,  there  was  a  general 
acclamation  and  the  election  was  complete.  But  some 
one  might  be  bold  enough  to  object;  if  his  objections 
seemed  valid  and  he  was  influential  enough  to  gain  a 
considerable  backing,  his  point  was  made  good  and 
other  names  were  proposed.  It  was  thus  only  in  the 
acclamation  and  in  the  right  to  dissent  that  the  popular 
element  consisted.  And  yet  in  theory — and  this  is 
very  important — these  elections  were  purely  popular; 
any  member  might  propose  names  and  any  might 
dissent. 

No  one  cared  to  take  part  in  these  elections,  not 
only  because  there  was  little  inspiration  in  electing 
people  to  places  they  did  not  want,  but  because  wages 
had  to  be  paid  them.  These  became  fixed  under 
Edward  II.  at  four  shillings  a  day  for  the  knights  of 
the  shire  and  two  shillings  for  the  burgesses.  Absten- 
tion from  the  election  might  be  urged  as  an  excuse  for 
not  sharing  in  the  payment  of  the  wages.  Few  were 
able  to  make  good  such  a  claim,  but  the  possibility 
worked  with  other  forces  to  so  belittle  the  election  that 
the  sheriff  often  practically  named  the  knights  who  were 
to  be  returned,  and,  when  he  had  an  object  for  doing 
so,  he  could  usually  manipulate  the  elections  to  suit 
himself.1 

1  In  1376  a  petition  was  sent  to  the  king  by  the  House  of  Com- 


Parliament  347 

In  this  condition  the  shire  elections  remained  until 
the  one  thing  which  could  cause  development  occurred. 
At  the  end  of  the  fourteenth  century,  places  in  the 
House  of  Commons  were  no  longer  matters  of  indiffer- 
ence; hence  an  increased  interest  in  electing  men  to 
those  places  and  developments  in  the  electoral  process. 
There  were  two  things  in  the  reign  of  Richard  II.  that 
begin  to  threaten  the  influence,  both  general  and  local, 
of  the  class  of  knights  and  esquires,  the  country  gentle- 
men, the  smaller  landlords.  The  great  peasant  agita- 
tions then  culminating  showed  that  there  was  a  class 
below  whose  rights  and  power  must  be  reckoned  with, 
and  the  long  war  with  France  had  resulted  in  an  in- 
creased power  and  arrogance  of  the  great  nobles. 
Livery  and  maintenance  were  beginning;  the  nobles 
returned  from  the  continent  with  large  bands  of  fol- 
lowers whom  they  were  loath  to  dismiss;  they  often 
brought  greatly  increased  wealth,  and  always  high- 
flown  ideas  of  their  importance  and  their  superiority 
to  the  classes  below  them.  They  were  the  essence  of 
the  tawdry  and  decadent  feudalism  of  the  English  and 
French  courts  of  that  period.  The  knights  felt  them- 
selves in  danger  of  being  crushed  between  the  upper 
and  nether  millstones;  the  House  of  Commons  was 
the  only  place  where  they  could  make  themselves  felt, 
where  they  could  enact  "statutes  of  labourers"  on  the 
one  hand  or  join  the  king  in  his  attempts  to  curb  a 

mons  asking  that  the  knights  be  chosen  by  the  better  folk  of  the 
shires  and  not  by  the  sheriffs  alone.  The  king  replied  that  they 
were  to  be  chosen  by  the  whole  county.  This  shows  the  continuance 
of  the  sheriffs'  undue  influence,  but  undoubtedly  also  indicates  an 
increasing  interest  on  the  part  of  the  people.  As  late  as  1410,  an 
act  was  passed  restraining  abuses  by  the  sheriffs  in  the  election 
returns..  See  A.  and  S.,  document  113. 


348        Period  of  Constitution  Making 

grasping  aristocracy  on  the  other.1  This  approach  of 
king  and  Commons  was  one  of  the  most  striking  and 
novel  features  in  the  politics  of  this  reign.  In  fact, 
the  Commons  began  to  assume  the  consciously  inde- 
pendent position  between  Lords  and  king  which  be- 
came characteristic  in  the  fifteenth  century.  An 
entirely  new  significance  began  to  attach  to  their  elec- 
tion to  Parliament.  Should  the  rising  peasant  class, 
whose  interests  they  thought  so  contrary  to  theirs,  or 
the  insolent  followers  of  the  great  nobles  share  in  the 
county  elections?  From  the  end  of  Edward  III.'s 
reign,  there  is  evidence  that  numbers  of  people  at- 
tended the  elections  who  were  not  properly  suitors  to 
the  county  court.  An  act  of  1406,2  decreeing  that 
knights  be  elected  not  only  by  suitors  duly  summoned 
to  the  court  for  the  purpose  of  election  but  by  all  who 
might  be  present,  appears  so  out  of  harmony  with  the 
more  definitive  legislation  soon  to  follow  and  with  what 
one  would  naturally  expect  from  the  Commons  as  to 
suggest  an  exceptional  situation  just  at  that  time. 
The  Commons  had  been  bringing  forward  an  unusual 
number  of  petitions  looking  towards  an  interference  in 
the  government  and  a  limitation  of  the  royal  power. 
It  has  been  suggested  that  a  temporary  estrangement, 
arising  between  king  and  Commons  because  of  this, 
was  made  use  of  by  the  Lords  to  carry  through  an  act 
by  which  they  hoped  in  the  end  to  gain  virtual  control 
of  the  lower  house.  If  no  restrictions  were  placed  upon 
the  county  electorate,  they  might  expect,  by  means  of 
the  votes  of  their  retainers,  not  only  to  prevent  the 

1  See  the  Statute  of  Maintenance   and    Liveries,  1390,  A.  and  S., 
document  96. 

J  A.  and  S.,  document  1 1 1. 


Parliament  349 

return  of  specially  obnoxious  knights,  but  possibly  to 
compass  the  election  of  some  of  these  retainers  them- 
selves.1 But  by  1413,  the  situation  had  changed: 
Henry  IV.  was  dead  and  the  new  king  and  Commons 
were  in  harmony.  A  statute  of  that  year  decreed  that 
knights  elected  to  Parliament  be  resident  at  the  time 
of  election  in  the  counties  which  chose  them  and  that 
the  electors  be  of  the  same  county  in  which  they  voted.2 
This  removed  much  that  was  dangerous  in  previous 
practice  and  which  was  sanctioned  by  the  act  of  1406, 
but  not  all. 

In  1429,  was  passed  the  famous  disfranchising 
statute. 3  It  leaves  no  doubt  of  the  interest  now  taken 
in  the  county  elections.  The  statute  mentions  great 
troops  of  people,  residents  of  the  county,  who  come  to 
elections,  and,  by  their  presence,  cause  danger  of 
"manslaughter,  riots,  batteries,  and  divisions";  and 
there  is  this  significant  clause:  whereas  the  elections  of 
knights  "have  now  of  late  been  made  by  very  great 
and  excessive  number  of  people  ...  of  the  which 
most  part  was  by  people  of  small  substance,  or  of  no 
value,  whereof  every  of  them  pretended  a  voice  equiva- 
lent, as  to  such  elections  to  be  made,  with  the  most 
worthy  knights  and  esquires."  In  these  words,  con- 
firmed by  the  disfranchising  provision  which  follows, 
one  comes  upon  the  first  recognition  in  English  history 
of  election  as  a  political  right.  *  After  there  had  been 
a  representative  Parliament  for  nearly  one  hundred 
and  fifty  years,  is  first  found  this  idea  which,  at  first 
thought,  would  seem  its  inevitable  accompaniment 
from  the  beginning.  The  disfranchising  clause  limited 

1  Riess,  Wahlrecht,  pp.  87,  88.  2  A.  and  S.,  document  115. 

3  Ibid.,  document  121.  *  Riess,  Wahlrecht,  p.  91. 


35°        Period  of  Constitution  Making 

the  electorate  to  residents  of  the  county,  "whereof 
every  one  of  them  shall  have  free  tenement  to  the  value 
of  forty  shillings  by  the  year  at  the  least  above  all 
charges."  Then  follows  another  statement  of  great 
significance :  ' '  and  such  as  have  the  greatest  number  of 
them  that  may  expend  forty  shillings  by  the  year  and 
above,  as  afore  is  said,  shall  be  returned  by  the  sheriffs 
of  every  county,  knights  for  the  parliament."  This 
has  bc-en  regarded  as  the  first  legal  expression  of  the 
majority  principle  to  be  found  in  the  middle  ages.1 
All  the  election  writs  in  the  remainder  of  Henry  VI. 's 
reign  repeated  the  provision.  The  statute  of  1445, 
requiring  county  representatives  to  be  of  gentle  birth, 
completed  this  important  line  of  legislation.  That 
the  disfranchising  statute  was  a  thoroughgoing  measure 
is  shown  by  the  reflection  that  forty  shillings  of  that 
time  had  the  purchasing  power  of  over  £30  to-day. 
A  large  and  worthy  class  of  people  was  kept  from  po- 
litical rights  for  four  hundred  years ;  but  the  Commons 
were  dealing  with  very  real  dangers  in  the  fifteenth 
century;  they  were  fighting  for  political  existence.  It 
must  be  acknowledged  that  in  the  centuries  following 
the  forty-shilling  freeholders  exercised  well  the  great 
power  vested  in  them. 

The  subject  of  the  electorate  in  the  boroughs  presents 
a  serious  problem  at  the  outset.  The  normal  writs  of 
early  times  simply  ordered  the  sheriffs  to  return  so 
many  citizens  and  burgesses  from  such  cities  and 
boroughs  as  lay  in  their  respective  counties.2  It  was 

1  Riess,  Wahlrecht,  pp.  91,  92. 

2  Simon    de   Montfort   dealt   with   the    boroughs    directly,  and 
the   same  thing  was  done  in  one  or  two  instances  in  the  reign  of 
Edward  I.  but  it  soon  became  the  unbroken  rule  to  deal  with  them 
through  the  sheriffs. 


Parliament  351 

not  long,  however,  before  certain  cities  and  boroughs 
are  found  always  represented  in  Parliament,  whereas 
in  the  case  of  certain  others  the  right  or  rather  the 
burden  of  representation  has  disappeared.  So  anoma- 
lous and  haphazard  has  the  line  of  demarcation  between 
these  two  classes  appeared  that  many  investigators 
have  been  at  a  loss  to  account  for  the  distinction. 
Probably  an  important  source  of  error  in  dealing  with 
the  subject  has  been  the  attributing  of  more  value  to 
borough  representation  than  it  had  at  the  time  either 
in  the  thought  of  the  king  or  of  the  boroughs  themselves. 
It  has  been  thought  that  if  in  so  weighty  a  matter  as 
representation  in  Parliament  some  boroughs  were  al- 
most always  represented  while  some  were  not,  the 
central  government  must  have  had  a  weighty  reason 
for  making  the  distinction.  But  it  was  not  a  weighty 
matter ;  the  king  levied  taxes  upon  the  boroughs  whether 
they  were  represented  or  not 1 ;  and,  if  he  found  repre- 
sentatives of  a  respectable  number  of  them  present, 
enough  to  give  necessary  information  and  confer  with 
him  concerning  his  proposed  exactions,  the  fact  that 
the  others  had  failed  to  return  members  was  a  matter 
of  indifference.  It  is  a  significant  fact  that  the  respon- 
sibility of  dealing  with  the  individual  boroughs  was  left 
to  the  sheriffs,  and  there  is  but  slight  indication  that 
penalties  were  ever  imposed  by  the  king  upon  the 
boroughs  that  failed  to  respond.  The  boroughs  cer- 
tainly regarded  representation  as  a  burden,  and  there 
are  several  instances  in  which  the  king  formally  granted 
relief  from  it  for  specified  reasons. 

The  growth  of  a  definite  and  somewhat  limited  class 

*  But  of  course  the  boroughs  which  escaped  representation  es- 
caped the  payment  of  wages  to  representatives. 


352        Period  of  Constitution  Making 

of  represented  boroughs  is  tnerefore  to  be  explained 
through  the  relations  between  the  sheriffs  and  the 
boroughs  in  their  respective  counties.  Some  boroughs 
had  become  entirely  independent  of  the  hundreds  in 
which  they  lay,  not  only  in  internal  administration, 
which  was  true  of  all,  but  in  external  relations.  In  the 
matter  of  the  summons  to  Parliament,  the  sheriff  dealt 
with  such  boroughs  directly  and  not  through  the  hund- 
red's officers.  Dealing  directly  with  so  powerful  a 
king's  officer  as  the  sheriff,  these  boroughs  were  the 
ones  most  regularly  represented.  In  some  of  the  dis- 
tant counties,  as  Somerset,  Devon,  and  Cornwall,  the 
sheriffs  adopted  the  same  direct  summons  in  the  case 
of  boroughs  not  independent  of  their  hundreds  and 
these  were  thus  brought  into  the  class  of  regularly 
represented  places.  When  the  sheriffs  communicated 
with  boroughs  through  the  hundred's  bailiffs,  there 
was  a  tedious  procedure,  subject  to  many  chances  and 
interruptions,  before  the  names  of  the  chosen  represen- 
tatives, in  case  any  were  chosen,  were  ready  to  be  sent 
to  the  Chancery.  Apparently  in  these  distant  counties, 
the  addition  of  the  long  and  slow  journey  from  and  to 
London  made  it  impossible  to  get  the  returns  in  be- 
fore the  meeting  of  the  Parliament  concerned.  Hence 
here  the  sheriffs  came  to  deal  over  the  heads  of  the  hund- 
red's bailiffs.  A  third  class  of  boroughs  lay  in  the 
great  "liberties"  (usually  much  larger  than  hundreds) : 
these  must  be  dealt  with  through  the  bailiffs  of  the 
"liberty."  In  this  case,  not  even  in  the  distant  coun- 
ties did  the  sheriff  venture  to  disregard  the  medium- 
ship  of  the  bailiffs,  and  these  boroughs,  almost  without 
exception,  early  ceased  to  be  represented  in  Parlia- 
ment. Thus  the  boroughs  dealt  with  through  the 


Parliament  353 

minor  officials  found  it  easier  to  dodge  the  disagreeable 
duty.  It  may  seem  a  trifling  matter  to  have  produced 
so  marked  a  distinction  among  the  boroughs  of  Eng- 
land, in  the  course  of  time  the  source  of  marked  political 
results;  but  in  the  early  years  of  an  institution,  when 
everything  is  in  flux  and  small  importance  is  attached 
to  the  beginnings  of  things  really  great,  petty  and  ob- 
scure influences  may  play  a  great  role.1 

The  sheriff  had  about  as  much  opportunity  to  manip- 
ulate borough  as  county  representation.  The  writ 
ordering  the  election  passed  through  his  hands  and  he 
might  be  induced  not  to  send  it.  Such  suppression  of 
writs  seems  to  have  occurred  occasionally  in  the  last 
half  of  the  fourteenth  century  and  later,  when  the  list 
of  boroughs  that  commonly  sent  representatives  had 
become  quite  fixed.  Moreover,  it  was  possible  for 
the  sheriff,  since  the  names  of  the  borough  members 
had  to  be  returned  through  him  together  with  the  re- 
sults of  the  shire  elections,  to  change  the  names.  This 
left  the  boroughs  quite  powerless  since  the  Chancery 
did  not  ordinarily  go  back  of  the  sheriff's  returns. 
There  was  no  temptation  to  such  abuse  until  seats  in 
Parliament  were  regarded  as  worth  something.  The 
abuse  was  in  part  mitigated  through  the  petitions  of 
individual  boroughs  or  actions  originating  in  the  House 
of  Commons,  and  these  means  were  supplemented  by 
the  effect  of  the  new  charters  of  incorporation  granted 
to  some  boroughs ;  these  virtually  placed  the  electorate 
in  oligarchies  which  carefully  guarded  their  rights  and 
created  a  greater  esprit  de  corps.  By  the  end  of  the 
fifteenth  century,  about  eighteen  important  boroughs 

1  For  a  full  discussion  of  this  subject,  see  Riess,  Wahlreckt, 
di.it. 


354        Period  of  Constitution  Making 

had  been  granted  the  organisation  of  shires  with 
sheriffs  of  their  own. 

The  variety  in  borough  governments,  the  slight 
intercommunication,  and  the  small  value  set  upon 
representation  in  Parliament  resulted  in  lack  of  uni- 
formity in  the  manner  of  election.  The  sheriff  sent 
to  the  borough's  bailiffs  a  copy  of  the  writ  received 
from  the  king  requiring  that  borough  to  send  two  repre- 
sentatives to  the  ensuing  Parliament.  Ordinarily  the 
choice  was  then  made  in  one  of  three  ways :  the  bailiffs 
themselves  made  the  choice;  they  called  a  meeting  of 
the  most  important  burgesses  and  consulted  them  in 
the  matter;  they  called  a  general  meeting  of  the  bur- 
gesses, in  which  case  the  election  was  conducted  much 
as  it  was  in  the  county  courts,  with  a  real,  if  slight, 
popular  element  in  it.  The  bailiffs  sent  the  result  to  the 
sheriff,  who  included  it  in  his  statement  of  the  county 
election  which  was  sent  to  the  Chancery.1 

7.  Origin  of  the  chief  Powers  of  Parliament:  Control 
over  Taxation ;  Legislation ;  a  Share  in  Administration.— 
What  has  already  been  said  incidentally  of  the  functions 
of  the  representative  elements  in  the  early  Parliament 
has  represented  them  as  narrow  and  somewhat  undig- 
nified and  subordinate.  The  Commons  were  present 
to  vote  taxes — which,  paradoxical  as  it  may  seem, 
scarcely  implied  an  ability  to  refuse  them;  to  humbly 
petition ;  to  answer  questions.  The  almost  servile  part 
played  by  the  third  estate  in  the  French  Estates  General 
of  the  same  period  was  not  very  different  from  that  of 
the  corresponding  element  in  the  English  assembly. 
To  be  sure,  the  knights  of  the  shire,  from  their  ante- 
cedents and  local  influence,  were  always  accorded  more 

>  Riess,  Wahlrecht,  pp.  59-62. 


Parliament  355 

consideration  than  the  burgesses,  and  in  the  union  of 
these  elements  lay  infinite  possibilities.  But  it  was 
all  possibility  at  the  beginning  of  the  fourteenth  century 
and  it  is  now  to  be  noted  how,  from  so  humble  a  begin- 
ning, Parliament  developed  the  great  attributes  of 
power  which  one  now  associates  with  the  name,  how 
through  Parliament  the  English  people  preserved,  and 
in  part  gained,  a  constitutional  monarchy.  Only  the 
beginning  of  the  development  is  dealt  with  here,  sub- 
stantially that  which  was  included  in  the  fourteenth 
century;  but  in  that  period  nearly  all  the  activities  of 
Parliament  were  outlined. 

A  preliminary  consideration  claims  attention  at  the 
outset.  How  can  the  early  remarkable  vitality  of 
Parliament  be  accounted  for?  In  order  that  Parlia- 
ment should  gain  power  of  any  sort,  there  must  be 
reasonably  frequent  meetings;  the  more  frequent  they 
were  in  the  early  days,  the  more  rapidly  would  grow 
the  general  esteem  in  which  the  institution  was  held, 
the  more  necessary  and  regular  a  part  of  the  govern- 
ment would  it  seem.  A  new  and  unrecognised  institu- 
tion is  so  easily  killed  by  adverse  circumstances  or 
long  interruptions,  that  it  was  of  prime  importance 
that  during  the  first  century  of  Parliament's  history 
political  conditions  demanded  almost  yearly  sessions. 
The  battle  of  an  institution  is  half  won  when  it  has 
become  to  the  popular  mind  something  regular  and 
necessary. 

The  misrule  and  inefficiency  of  Edward  II.  caused 
local  oppressions  and  a  corresponding  demand  for  fre- 
quent meetings  of  the  body  in  which  complaints  might 
be  made  and  remedies  sought.  An  article  in  the  New 
Ordinances  of  1311  says:  "Inasmuch  as  many  people 


356        Period  of  Constitution  Making 

are  oppressed  by  the  king's  ministers,  .  .  .  and  for 
such  oppressions  can  find  no  remedy,  save  through  the 
common  parliament:  we  do  ordain,  that  the  king  shall 
hold  a  parliament  once  in  the  year,  or  twice,  if  need  be, 
and  that  in  a  convenient  place."  In  1322,  when  the 
Ordinances  were  revoked  under  the  leadership  of  the 
Despensers,  these  royal  favourites  found  it  convenient, 
on  purely  selfish  grounds,  in  taking  their  stand  against 
the  barons,  to  uphold  the  parliamentary  tradition. 
In  the  act  of  revocation  is  found  this  great  principle, 
which  surely  did  not  represent  the  practice  or  even  the 
general  theory  of  the  time,  but  the  statement  of  which 
must  have  had  its  importance:  "but  the  matters  which, 
are  to  be  established  for  the  estate  of  our  lord  the  king 
and  of  his  heirs,  and  for  the  estate  of  the  realm  and  of 
the  people,  shall  be  treated,  accorded,  and  established 
in  parliaments,  by  our  lord  the  king,  and  by  the  assent 
of  the  prelates,  earls,  and  barons,  and  the  commonalty 
of  the  realm;  according  as  it  hath  been  heretofore 
accustomed."1  Early  in  the  next  reign,  1330,  while 
local  abuses  were  still  grievous,  and  from  the  context 
of  the  clause  undoubtedly  because  of  them,  again  is 
found  the  enactment  "that  a  parliament  shall  be 
holden  every  year  once,  or  more  often  if  need  be."2 
Then  began  the  great  drama  of  Edward  III.'s  reign, 
a  war  drama  from  beginning  to  end,  a  reign  of  fifty 
years,  during  which  there  was  constant  and  unusual 
need  of  money.  Taxes  must  be  negotiated  through 
Parliament,  and  the  letter  of  the  statutory  requirement 

1  A.  and  S.,  p.  97. 

*Ibid.,  p.  101.  This  was  confirmed  in  1362:  "For  redress  of 
divers  mischiefs  and  grievances  which  daily  happen  a  Parliament 
shall  be  holden  every  year,  as  another  time  was  ordained  by  statute." 
Cited  in  Taswell-Langmead,  English  Constitutional  History,  p.  217. 


Parliament  357 

of  1330  was  almost  kept,  for  there  was  the  remarkable 
record  of  forty-eight  Parliaments  in  fifty  years.  The 
late  years  of  this  reign  and  the  whole  of  the  following 
reign  were  another  period  of  factional  strife,  and  in 
another  connection  has  already  been  noted  the  im- 
portance in  the  history  of  the  House  of  Commons  of 
Richard  II. 's  intrigues  with  it  against  the  Lords.1 
Thus  for  a  full  century  after  1295  one  cause  or  another 
was  keeping  Parliament  alive  and  active. 

The  knights  of  the  shire  and  the  burgesses  were  from 
the  beginning  conscious  of  the  financial  purpose  which 
drew  them  to  Parliament.  Especially  was  this  purpose 
emphasised  by  the  circumstances  which  attended  the 
summons  of  the  Model  Parliament  and  the  events  of 
the  two  succeeding  years.  Parliament  was  distinctly 
a  taxing  body  from  the  first ;  it  was  more  this  than  any- 
thing else.  It  was  natural  then  that  Parliament's  first 
great  contest  with  the  king  should  have  been  financial 
and  that  its  first  great  power  to  be  developed  should 
have  been  control  over  taxation.  Legislation,  in  point 
of  time  its  second  line  of  development  and  wrhich  be- 
came its  characteristic  function,  began  very  gradually, 
was  really  exercised  by  Parliament  before  that  body 
was  fully  conscious  of  its  character  and  import,  but 
became  a  great  and  recognised  attribute  in  the  course 
of  the  fourteenth  century.  A  third  activity  beginning 
in  the  same  period,  the  interfering  in  and  seeking  to 
control  certain  lines  of  public  business,  Parliament  was 
drawn  into  through  its  attempts  to  gain  a  mastery  in 
the  other  two  departments,  especially  the  first.  The 
origin  and  early  growth  of  these  three  fundamental 
powers  will  now  be  considered  in  the  order  named, 

1  See  above,  pp.  347,  348. 


Period  of  Constitution  Making 

though  their  interrelations  will  render  entire  separate- 
ness  of  treatment  impossible. 

A. — The  king  got  together  the  different  estates  in 
Parliament,  not  so  much  to  consent  to  taxation,  though 
they  may  have  formally  done  that,  as  to  provide  ways 
and  means  for  its  assessment  and  collection;  he  con- 
sulted them  on  the  form  the  proposed  levy  should  take 
and  how  it  should  be  apportioned  among  the  elements 
represented.  But  this  implies  a  conception  of  taxation 
as  a  thing  in  which  all  classes  were  concerned,  a  na- 
tional taxation.  It  has  been  shown  that  for  a  con- 
siderable period  after  the  Norman  Conquest  there  was 
no  understanding  of  taxation  in  the  modern  sense.1 
The  king  had  various  sources  of  revenue  and  means  of 
supplying  the  needs  of  government,  but  his  attention 
was  always  fixed  upon  classes  of  men.  Each  class  had 
a  specialty,  in  some  cases  based  upon  private  contract 
or  proprietary  relations,  for  supplying  the  royal  needs. 
The  king  made  his  demands  upon  this,  that,  and  the 
other  class  of  the  population  as  opportunity  dictated 
and  upon  this,  that,  and  the  other  different  ground. 
This  system  gradually  passed  into  disuse  as  feudal  ideas 
waned,  and  out  of  it  national  taxation  did  not  grow. 
National  taxation  is  characterised  by  fixing  the  atten- 
tion upon  kinds  of  property  rather  than  upon  classes 
of  men,  by  taxing  at  one  time  all  of  a  certain  kind  of 
property  irrespective  of  who  holds  it.  Its  scope  is  the 
nation,  not  the  class.  It  is  necessary  at  this  point  to 
say  a  word  upon  its  origin. 

Of  the  two  well-known  varieties  of  tax,  direct  and 
indirect,  the  former  made  its  appearance  first  and 
carries  us  back  to  the  reign  of  Henry  II.  and  the  eve 

1  See  above,  pp.  105-109. 


Parliament  359 

of  the  third  Crusade.  How  large  a  part  in  the  origin 
of  taxation  was  played  by  the  Crusades  and  the  popes 
as  their  managers  is  coming  to  be  well  understood.  The 
situation  in  the  East  constituted  a  need  international 
and  pressing,  in  meeting  which  the  state  was  ready  to 
co-operate  with  the  church;  and  feudalism,  efficient 
only  in  local  undertakings,  was  found  wanting.  The 
management  of  the  third  Crusade  was  openly  and 
effectively  undertaken  by  the  church,  and  money  was 
to  be  raised  by  a  tax  on  revenue  and  movables.  This 
was  the  famous  Saladin  Tithe.1  An  ordinance  of  1188 
imposed  it  upon  England;  the  first  clause  reads,  "This 
year  each  one  shall  give  in  alms  a  tenth  of  his  revenues 
and  movables."  This  new  scheme  for  raising  money 
was  not  likely  to  be  lost  sight  of  in  such  a  reign  as 
Richard  I.'s;  and  when  his  great  ransom  was  raised  it 
was  used  for  the  first  time  in  a  domestic  concern,  and  at 
a  higher  rate.  From  this  time,  the  tax  was  levied  with 
more  or  less  frequency  and  at  greatly  varying  rates; 
and  the  difficulty  in  assessing  personal  property  gave 
rise  to  the  use  of  juries  of  neighbours  that  has  been 
noted  as  so  important  in  leading  to  the  origin  of 
representation  in  Parliament.2  At  first  some  account 
was  taken  of  the  different  classes  of  people,  as 
clergy,  barons,  knights  of  the  shire,  burgesses;  but 
partly  owing  to  the  union  of  the  last  two  elements  in 
Parliament  and  partly  as  a  result  of  the  inherent  neces- 
sities of  such  a  tax,  "the  old  distinction  between  Estates 
gave  way  to  a  new  distinction  based  on  the  difference 
between  town  and  country,  or,  roughly,  between  real 
and  personal  property;  and  while  the  ordinary  propor- 
tion granted  for  dwellers  outside  a  chartered  town 

1  A.  and  S.,  document  19.  *  See  above,  pp.  313,  315,  31$. 


360        Period  of  Constitution  Making 

was  one-fifteenth,  one-tenth  was  the  settled  share  of 
inhabitants  of  a  parliamentary  borough."1  After 
1332,  because  it  was  felt  that  this  tax  was  being  exces- 
sively levied,  it  was  really  decreased  by  allowing  no  new 
assessment.  So  the  actual  sum  levied  on  the  basis  of 
the  assessment  for  that  year,  ^3 9,000,  became  a  fixed 
charge  properly  proportioned  between  town  and  coun- 
try, and  wras  always  known  as  the  tenth  and  fifteenth. 

Of  the  indirect  taxes,  import  duties  originated  in 
the  immemorial  right  of  the  king  to  regulate  trade  with 
foreign  countries;  he  received  some  portion  of  the 
imported  goods  in  return  for  his  countenancing  and 
protecting  the  traders,  whether  native  or  foreign.  The 
seizures  made  under  this  right  were  very  arbitrary  in 
the  early  days,  but  in  the  reign  of  Edward  I.  there  was 
some  attempt  at  regularity  by  levying  25  on  every 
tun  of  imported  wine  and  45  on  every  pound's  worth 
of  other  imports.  This  was  the  origin  of  tunnage  and 
poundage.2  The  duty  on  exports  arose  from  the  right 
to  tax  movables.  Their  passing  out  of  the  country 
afforded  a  specially  easy  and  effective  means  of  assessing 
certain  kinds  of  movables.  The  great  exports  of  Eng- 
land were  wool  and  leather.  By  the  early  thirteenth 
century,  it  was  customary  for  the  king  to  receive  6s  Sd 
(half  a  mark)  on  each  sack  of  wool  and  a  mark  on  each 
last  of  leather.  He  took  more  than  this  when  he  could, 
but  the  higher  levy  was  known  as  an  evil  toll  (maltote) . 
Of  course  this  taxing  of  exports  was  only  possible  be- 
cause there  was  at  that  time  no  country  able  to  compete 

1  Medley,  English  Constitutional  History,  p.  511 

2  This  was  the  New  Custom  of   1303,  when  the  foreign  merchants 
consented  to  pay  an  import  duty  in  exchange  for  certain  trading 
privileges.      It  was  not  called  tunnage  and  poundage  until  1373. 


Parliament  361 

with  England  in  the  production  of  these  particular 
commodities. 

In  general,  war  has  been  the  necessity  that  fathered 
taxation.  With  the  exception  of  the  resistance  to  the 
Danish  invasions,  the  wars  of  the  Anglo-Saxon  period 
were  petty.  Those  invasions  resulted  first  in  a  wider 
and  more  regular  enforcement  of  the  trinoda  necessitas, 
and  finally  brought  forth  the  Danegeld.  The  Norman 
dukes  had  fought  at  no  great  distances,  and  feudalism 
served  the  military  requirements  of  the  duchy  fairly 
well.  After  the  Conquest,  one  of  the  most  important 
roots  of  taxation  and  of  resistance  to  taxation  in  Eng- 
land was  the  attempt  to  make  feudal  service  extend 
across  the  Channel.  Hence  in  the  early  resistances 
the  nobility  naturally  took  the  lead. x  But  the  income 
and  personal  property  taxes,  also  the  offspring  of  war, 
were  being  more  and  more  used.  All  classes  wrere 
concerned  in  these;  and  as  the  indirect  taxes  were  de- 
veloped during  the  thirteenth  century,  and  gained  re- 
cognition in  the  reign  of  Edward  I.,  powerful  special 
interests  became  involved  in  the  problem  of  taxation. 
In  the  struggle  of  1297,  the  great  nobles  still  led,  but 
all  classes  were  more  consciously  concerned  than  in 
any  preceding  conflict  and  were  learning  the  lesson  of 
resistance  to  taxation  as  they  could  not  have  done 
in  1215.  Thus,  just  as  Parliament  was  coming  into 
existence,  the  people  of  England  were  gaining  their 
first  true  insight  into  the  possibility  and  necessity  of 
controlling  the  king's  taxing  power. 

The  vital  promise  made  by  the  king  in  Confirmatio 
Cartarum  reads : 

1  For  a  discussion  of  the  transformation  of  feudal  service  into  taxa- 
tion and  the  resistance  to  the  process,  see  above,  pp.  107-109 ;  258-260. 


362        Period  of  Constitution  Making 

Moreover  we  have  granted  for  us  and  our  heirs  as  well  to 
archbishops,  bishops,  abbots,  priors,  and  other  folk  of  holy 
Church,  as  also  to  earls,  barons,  and  to  all  the  commonalty 
of  the  land,  that  for  no  business  from  henceforth  we  shall 
take  of  our  realm  such  manner  of  aids,  tasks,  nor  prizes, 
but  by  the  common  assent  of  all  the  realm,  and  for  the 
common  profit  thereof,  saving  the  ancient  aids  and  prizes 
due  and  accustomed. 1 

It  is  interesting  to  note  the  somewhat  grudging  and 
slight  mention  of  the  Commons'  right  to  consent  to 
taxation,  and  that  in  the  excepted  "ancient  aids"  they 
had  never  had  any  share,  and  hence,  as  far  as  this 
law  was  concerned,  would  not  in  the  future.  One  is  re- 
minded that,  despite  the  great  changes  of  the  thirteenth 
century,  the  revolt  of  1297  was  much  a  barons'  affair, 
and  that  the  difference  in  spirit  between  this  provision 
and  the  long-omitted  article  twelve  of  Magna  Carta, 
which  it  really  replaced,  was  not  as  great  as  has  often 
been  represented.  The  Commons  were  upon  the 
brink  of  obtaining  a  great  right  in  1297  rather  than  in 
possession  of  it. 

1  A.  and  S.,  document  48.  It  is  interesting  in  estimating  the 
value  and  inclusiveness  of  this  famous  promise  to  compare  its 
language  with  that  of  the  document  known  as  De  Tallagio  non 
Concedendo.  This  was  an  unofficial  statement  of  the  demands  of 
the  discontented  elements  and  is  found  in  the  chronicle  of  Walter 
of  Hemingburgh ;  it  was  mistaken  for  a  statute  in  later  centuries  and 
was  cited  as  such  in  the  Petition  of  Right  (A.  and  S.,  document  189). 
Its  first  article  reads:  "No  tallage  or  aid  shall  be  laid  or  levied  by 
us  or  our  heirs  in  our  realm,  without  the  good  will  and  assent  of  the 
archbishops,  bishops,  earls,  barons,  knights,  burgesses,  and  other 
freemen  of  our  realm."  Here  was  a  statement  without  qualifying 
words  and  which  expressly  mentioned  the  individual  elements  of 
the  commonalty  as  well  as  of  the  nobility.  It  would  be  useful  to 
know  the  exact  source  of  these  words,  who  it  was  that  in  1297 
stated  the  great  principle  so  perfectly. 


Parliament  363 

The  language  of  Confirmatio  was  loose,  and  the  kings, 
even  Edward  I.,  were  quick  to  see  and  use  the  loop- 
holes which  it  afforded  them.  It  was  without  doubt 
the  intention,  under  the  words  aids,  tasks,  and  prizes, 
together  with  the  succeeding  article  dealing  with  the 
customs  duties,  to  include  both  direct  and  indirect 
taxation.  But  the  kings  presumed  themselves  per- 
mitted, without  consulting  anyone,  to  levy  the  regular 
feudal  aids  and  scutage,  to  tallage  their  domain  towns, 
and  to  dodge  the  customs  article  by  entering  into 
private  negotiations  with  merchants,  especially  foreign 
merchants  who  would  be  in  no  wise  covered  by  Con- 
firmatio. These  merchants  were  granted  valuable 
privileges  in  return  for  the  increased  duties  which  they 
agreed  to  pay.1  This  veiling  of  a  real  tax  under  the 
form  of  a  private  bargain,  in  which,  however,  one  of  the 
parties  had  small  chance  of  dealing  on  an  equality,  was 
the  most  important  of  these  subterfuges ;  for  the  export 
of  wool,  comparatively  small  before  this,  was  growing 
with  great  rapidity.  Feudal  aids,  scutage,  and  tallage 
of  the  royal  domain  were  already  antiquated,  played 
little  part  in  the  coming  conflict,  and  were  of  no  con- 
sequence after  the  three  Edwards. 

The  first  real  issue  was  upon  indirect  taxation.  The 
Commons,  conscious  that  they  were  not  strong  enough 
to  absolutely  prohibit  the  king's  breaking  the  letter 
or  the  spirit  of  the  customs  article,  adopted  the  shrewd 
device  of  formally  voting  the  money  that  he  had  ar- 
ranged for  and  would  obtain  anyway.  They  thus 

1  Purveyance,  Commissions  of  Array,  and  Distraint  of  Knight- 
hood were  minor  forms  of  indirect  taxation  retained  by  the  king 
for  a  considerable  time.  See  Medley,  English  Constitutional  History, 
pp.  238,  239. 


364        Period  of  Constitution  Making 

tacitly  asserted  the  principle  that  no  money  grants 
could  be  made  without  their  consent.  The  king  made 
no  objection  to  this  assumption  of  authority,  provided 
he  obtained  what  he  wanted;  but  Parliament  must 
have  had  a  dawning  perception  that  such  repeated  as- 
sertion of  principle  was  bound  sooner  or  later  to  bear 
fruit.  Edward  III.,  under  the  pressure  of  the  new 
war  with  France,  manifested,  in  1340,  his  intention  to 
levy  a  generally  increased  custom  on  wool  and  leather, 
similar  to  the  maltote  of  his  grandfather.  Parliament, 
to  prevent  the  arbitrary  action,  made  a  regular  grant 
of  the  custom  to  be  in  force  for  a  specified  time,  and 
containing  a  provision  that  after  the  expiration  of  that 
time  no  custom,  beyond  the  ancient  custom,  that  is, 
the  one  established  early  in  Edward  I.'s  reign,  should 
again  be  levied.  This  was  almost  immediately  fol- 
lowed by  a  statute  which  contained  a  broader  pro- 
hibitive provision.  Referring  especially  to  a  large 
subsidy  granted  at  the  same  time  that  the  increased 
tariff  had  been  arranged,  it  stated  that  the  people 
should  not  "be  from  henceforth  charged  nor  grieved 
to  make  common  aid  or  to  sustain  charge,  if  it  be  not 
by  the  common  assent  of  the  prelates,  earls,  barons, 
and  other  great  men,  and  commons  of  our  said  realm 
of  England,  and  that  in  the  parliament."  i  This  was 
a  reassertion,  after  nearly  half  a  century  of  intermit- 
tent conflict,  of  the  principle  of  1297,  and  the  added 
clause  respecting  Parliament  is  very  significant.  That 
Parliament  was  strong  enough  to  gain  this  acknowledg- 
ment from  Edward  III.  indicates  that  the  victory  was 
practically  won,  the  great  principle  of  parliamentary 
control  of  taxation  established.  Scarcely  ever  after  was 

1  A.  and  S.,  document  59. 


Parliament  365 

it  called  in  question ;  the  energy  and  ingenuity  of  kings 
was  expended  rather  in  dodging  it.  The  date  1340 
is,  therefore,  a  most  important  one  in  the  growth  of 
parliamentary  power.  An  act  of  1362,  confirmed  in 
1371,  to  the  effect,  that  no  one,  without  the  consent  of 
Parliament,  could  negotiate  any  charge  upon  wool, 
seems  to  have  brought  to  an  end  the  private  dealings 
with  merchants. 1  However,  the  results  of  those  deal- 
ings, having  passed  into  custom,  continued  to  advan- 
tage the  king,  and  the  maltote,  so  resisted  in  1340, 
became  a  regular  charge  upon  wool  through  parlia- 
mentary action  before  the  end  of  the  reign.2 

B.  Before  there  was  a  Parliament,  laws  had  been 
made  by  the  king  acting  through  his  court,  Curia 
Regis ;  he  made  ordinances  with  the  advice  and  consent 
of  his  counsellors.  But  the  Curia  Regis  was  no  national 
assembly  standing  over  against  the  king  and  repre- 
senting another  interest  in  such  action.  When  the 
barons  resisted  the  king's  power,  they  did  it  individually 
or  in  groups  with  force  of  arms,  they  did  it  as  a  feudal 
nobility;  they  did  not  fight  out  the  issues  in  parlia- 
mentary manner  in  an  assembly.  And  up  to  the  late 
twelfth  century,  at  least,  such  resistance  was  rather 
against  the  power  of  the  king  in  general  than  a  calling 
in  question  of  specific  manifestations  of  his  power.3 
In  the  legislative  act,  king  and  Curia  were  one;  when 
he  acted  formally,  the  king  always  acted  through  his 

1  For  a  specific  instance  of  resistance  to  such  dealings,  1343,  see 
A.  and  S.,  document  65.     The  Ordinance  of  the  Staples,  1353,  shows 
something  of  the  "merchants  strangers"  and  of  the  rate  of  the  cus- 
toms duties  in  that  year;  ibid.,  document  74. 

2  Parliament  was  bound  in  time  to  recognise  that  the  so-called 
tnaltote  was  not  an  exorbitant  charge. 

3  See  above,  pp.  253-259. 


366        Period  of  Constitution  Making 

Curia;  it  was  the  king  in  action.  The  king  was  the 
source  of  legislative  authority — a  Roman  idea,  vaguely 
present  in  England  from  very  early  times,  but  rein- 
forced from  the  continent  at  the  Conquest. 

During  the  thirteenth  century,  the  oneness  of  king 
and  Curia  in  legislation  was  less  marked  than  formerly. 
A  distinction  was  being  drawn  between  modifying  or 
applying  old  law  and  making  absolutely  new  law. 
While  the  king  could  do  the  former  upon  his  sole  au- 
thority, it  was  felt  that  there  was  an  impropriety  in  his 
doing  the  latter  without  the  consent  of  the  barons ;  and 
in  this  consent,  there  was  a  consciousness  of  voluntary 
collaboration  which  anticipated  a  new  theory  of  law- 
making.  But  when  representatives  of  the  counties  and 
boroughs  came  to  be  added  to  the  changing  Curia, 
there  was  introduced  an  element  of  confusion  so  great 
as  for  a  time  to  do  violence  to  any  theory  whatever. 
The  king  might  gain,  or  rather  demand,  the  consent  of 
any  element  of  his  people  thus  brought  to  the  centre, 
and  the  ordinance,  or  whatever  one  may  choose  to 
call  it,  based  upon  this  action,  was  law.  But  this 
constituted  no  recognition  of  a  right  on  the  part  of  these 
elements  to  a  share  in  legislation.  The  idea  of  legis- 
lation as  a  right  to  be  sought  or  shared  was  not  in 
existence.  Moreover  the  matters  with  respect  to 
which  the  king  asked  information  or  confirmation  were 
not  of  a  varied  character;  they  usually  were  related  in 
some  way  to  the  royal  revenue.  So  the  old  form  of 
ordinance  by  king  and  Curia  continued,  with  perhaps 
something  of  a  narrowing  of  scope  to  the  things  of 
special  interest  to  the  barons,  and  supplemented  by 
these  occasional  and  anomalous  actions  in  connection 
with  knights  of  the  shire  or  representatives  of  the 


Parliament  36  7 

boroughs.  The  Statute  of  Quia  Emptores,  1290, 
relating  to  a  subject  of  special  interest  to  the  barons, 
was  made  by  king  and  Curia  alone,  while  the  Statute 
of  Merchants,  1283,  though  bearing  the  form  and  word- 
ing of  an  ordinance,  was  the  product  of  deliberations 
with  the  burgesses  alone.  At  this  time,  there  was  no 
Parliament,  merely  the  ingredients  of  Parliament,  and 
the  idea  of  a  new  source  of  legislation  could  not  exist 
until  the  body  which  was  to  be  that  source  had  taken 
shape ;  for,  as  has  been  shown,  it  was  not  for  a  legislative 
purpose  that  the  new  body  was  called  into  existence. 

The  first  distinct  recognition  of  Parliament  as  a 
regular  source  of  legislation  is  found  in  the  revocation 
of  the  New  Ordinances,  1322.  The  important  clause 
already  quoted  in  another  connection  must  be  repeated 
here:  "but  matters  which  are  to  be  established  for  the 
estate  of  our  lord  the  king  and  of  his  heirs,  and  for  the 
estate  of  the  realm  and  of  the  people,  shall  be  treated, 
accorded,  and  established  in  parliaments,  by  our  lord 
the  king,  and  by  the  assent  of  the  prelates,  earls,  and 
barons,  and  the  commonalty  of  the  realm ;  according  as 
it  hath  been  heretofore  accustomed."  i  But  this  was 
probably  a  bit  of  political  theorising  by  the  antibaronial 
party;  regular  parliamentary  legislation  can  scarcely 
be  said  to  have  begun  at  that  time.  But  it  is  significant 
that  such  a  theory  could  have  been  formulated.  Sup- 
posing, however,  this  theory  to  have  become  realised 
most  perfectly,  it  could  still  only  have  meant  that  the 
king  had  to  obtain  the  consent  of  Parliament  to  meas- 
ures he  himself  proposed;  there  was  nothing  in  it  to 
interfere  with  the  monopoly  of  initiating  legislation 
which  he  had  always  possessed.  No  legislative  body 

1  A.  and  S.,  p.  97.     See  above,  p.  356. 


368        Period  of  Constitution  Making 

is  worthy  the  name,  nor  can  it  be  at  all  useful  in  winning 
for  the  people  political  liberty,  unless  it  has  the  right 
to  introduce  measures  of  its  own. 

The  origin  of  Parliament's  right  to  initiate  legislation 
was  in  the  right  of  petition  for  redress  of  grievances. 
The  right  of  every  subject  to  petition  the  sovereign 
had  always  existed.  Petitions  before  the  existence  of 
Parliament  may  be  divided  roughly  into  twro  classes; 
most  petitions  came  from  individuals  or  very  small 
groups  and  dealt  with  individuals'  wrongs :  but  occasion- 
ally there  had  been  petitions,  or  perhaps  remonstrances, 
presented  by  large  bodies  of  men  acting  together 
and  dealing  with  matters  of  quite  general  concern. 
Such  had  been  the  barons'  articles  upon  which  Magna 
Carta  was  based,  and  the  petition  of  1258  which  re- 
sulted in  the  Provisions  of  Oxford.  After  there  was  a 
Parliament,  these  two  kinds  of  petition  continued.  Of 
the  private  petitions,  some  were  now  brought  to  Parlia- 
ment for  consideration  before  being  presented  to  the 
king,  others  went  directly  to  the  king  or  some  official 
near  him.  An  increasing  number  would  naturally  be 
the  product  of  Parliament  itself;  it  was  representative 
and,  if  in  session  often  enough,  was  exactly  the  kind  of 
body  needed  to  express  public  sentiment;  it  was  an 
organised  and  regular  body,  quite  in  contrast  with 
the  irregular  and  revolutionary  risings  which  had 
previously  been  the  only  means  of  voicing  general 
grievances. 

But  this  use  of  Parliament,  like  Parliament  itself, 
was  a  new  and  untried  matter  in  the  early  fourteenth 
century.1  Parliament  could  only  petition — the  word 

1  Speaking  of  this  period,  Maitland  says:  "By  no  sharp  line  can 
the  petitions  of  the  assembled  lords  and  commoners  be  marked  off 


Parliament  369 

itself  is  significant — petition  a  sovereign  who,  on  the 
precedent  of  all  past  history,  was  perfectly  free  to 
reject  or  ignore.  As  Parliament  gained  self -conscious- 
ness and  recognition  from  frequency  of  meeting  and 
financial  importance,  a  contest  with  the  king  on  the 
matter  of  petitions  was  inevitable.  We  have  now  to 
examine  the  weapons  used  by  the  parties  to  the  conflict, 
and  note  how  Parliament  gradually  prevailed  and, 
in  the  course  of  the  century,  became  an  acknowledged 
legislative  body. 

As  it  became  more  thoroughly  established  that  the 
king  could  not  tax  without  Parliament's  consent,  that 
body  found  itself  possessed  of  a  valuable  commodity  in 
exchange  for  which  it  might  expect  something  of  equal 
value  from  the  king;  Parliament  had  money  or  the 
power  to  grant  money  and  the  king  had  the  right  to 
grant  petitions.  Here  were  the  elements  of  a  bargain  of 
which  Parliament  became  aware  early  in  the  fourteenth 
century,  and  which  have  perhaps  proved  the  most 
potent  factor  in  building  up  its  power.  The  grant  of 
money  was  postponed  until  after  redress  of  grievances. 
The  first  clear  instance  of  this  device  is  found  in  1309,! 

from  the  general  mass  of  those  petitions  which  are  to  be  expedited 
in  the  parliament  by  the  king  and  his  council.  At  a  somewhat 
later  date  the  line  will  be  drawn;  the  petitions  of  the  assembled  com- 
mons, the  petitions  of  'the  community  of  the  land,'  will  be  enrolled 
along  with  the  king's  answers  to  them ;  petitions  addressed  to  either 
of  the  two  houses  will  be  enrolled,  if  they  have  received  the  assent 
of  both  houses  and  of  the  king ;  but  the  ordinary  petitions  presented 
to  the  king  and  council  by  those  who  have  grievances  will  not  be 
enrolled,  though  as  of  old  many  of  them  will  be  answered  in  parlia- 
ment by  committees  of  auditors."  Introduction  to  Memoranda  de 
Parliaments,  pp.  Ixxiv.,  Ixxv. 

1  Taswell-Langmead,  English  Constitutional  History,  p.  215  and 
note  2.  The  Commons  allowed  a  tax  "upon  this  condition  that  the 
king  should  take  advice  and  grant  redress  upon  certain  Articles, 


37°        Period  of  Constitution  Making 

and  it  soon  became  customary  to  postpone  money 
grants  until  the  end  of  the  session. 

The  king,  however,  possessed  several  methods  of 
rendering  these  granted  petitions  ineffective,  and  he 
used  them  with  great  skill  and  persistence,  some  of 
them  lasting  long  after  the  infant  stage  in  parliamen- 
tary legislation.  The  most  important  at  this  time  was 
his  use  of  ordinances.  When  the  king  granted  a  peti- 
tion, it  practically  lay  with  him  whether,  when  it  was  en- 
grossed as  a  law,  it  should  take  the  form  of  an  ordinance 
or  a  statute.  The  use  here  of  the  term  statute  implies 
that  there  was  a  consciousness  of  a  new  kind  of  legis- 
lation ;  just  as  soon  as  the  idea  existed  that  there  could 
be  a  specially  weighty  and  permanent  kind  of  law 
because  it  had  been  sanctioned  in  a  specially  large  or 
varied  body,  the  statute  was  in  embryo.  Several  acts 
in  the  early  time,  especially  in  the  reign  of  Edward  I., 
have  been  called  statutes,  which  were  not  consented  to 
by  all  the  elements  necessary  to  a  statute  on  later 
theory;  but  the  diversity  in  size  and  make-up  of  the 
assemblies  in  that  reign  favoured  the  growth  of  the  idea 
of  a  new  source  of  law. 1  In  the  course  of  half  a  cent- 
ury of  frequent  Parliaments,  it  was  natural  that  this 

in  which  their  grievances  were  set  forth."  The  list  of  grievances  is 
an  interesting  one.  In  A.  and  S.,  document  66,  is  a  grant  of  tenths 
and  fifteenths  for  a  limited  time  and  on  conditions,  and  document 
68  is  an  excellent  example  of  a  grant  on  conditions.  A  much  later 
instance  is  found  in  document  114.  See  also  Gneist,  History  of  the 
English  Constitution,  p.  367,  note.  In  the  reign  of  Richard  II., 
the  postponement  of  money  grants  to  the  end  of  the  session  was  one 
of  the  matters  dealt  with  in  the  famous  replies  of  his  servile  judges 
to  the  list  of  questions  put  to  them  by  the  king.  The  time  of  his 
tyranny  proved  but  a  temporary  setback  to  the  attempts  of  the 
Commons  in  this  line. 

»  See  above,  pp.  235-237. 


Parliament  371 

idea  should  begin  to  take  definite  shape,  and  it  became 
the  accepted  theory  on  the  part  of  the  Commons  that 
measures  of  permanence  and  importance  must  have 
the  concurrence  of  king,  Lords,  and  Commons,  and 
measures  so  established  were  called  statutes.1  Such 
measures  might  be  introduced  by  the  king  or  originate 
as  petitions  in  the  House  of  Commons.  If  the  king, 
then,  gave  the  form  of  an  ordinance  to  that  which 
had  originated  in  a  petition,  or  indeed  to  anything 
which  had  been  confirmed  by  Parliament  as  a 
whole,  it  was  regarded  as  doing  violence  to  the 
distinction  then  taking  shape.  There  are,  however, 
but  few  instances  of  such  action  by  the  king  after 
the  distinction  had  become  generally  recognised. 
But  king  and  Council  could  still  make  ordinances, 
and  use  was  often  made  of  these  to  limit  or  injure  a 
statute  which  the  king  had  not  been  able  directly  to 
prevent. 

A  further  difficulty  lay  in  the  king's  assumption  of 
the  right  to  annul  a  statute.  This  illustrates  well  the 
difference  between  ordinances  and  statutes  and  worked 
powerfully  at  the  time  to  clarify  thought  upon  the 
matter.  The  king  had  always  been  able  to  annul  an 
ordinance  because  he  had  created  it.  He  created  it 
because  he  was  the  source  of  law,  and  he  could  destroy 
that  which  he  was  alone  concerned  in  creating.  Ed- 
ward III.  tried  to  annul  a  statute.  In  1341,  a  radical 
measure  was  passed,  an  important  provision  of  which 
was  that  ministers  and  judges  be  appointed  by  Parlia- 
ment ;  the  king,  under  threat  of  no  subsidy,  was  forced 

i  How  clearly  this  had  become  recognised  is  shown  by  the  pro- 
tests and  requests  of  the  years  1353  and  1354.  See  A.  and  SM 
documents  75  and  76. 


372        Period  of  Constitution  Making 

to  assent  to  it,  and  it  became  a  statute. 1  After  Parlia- 
ment was  dissolved,  the  king  declared  the  statute  null 
and  sent  a  notice  to  that  effect  to  all  the  sheriffs.2 
That  this  was  regarded  as  an  unwarranted  action  is 
shown  by  the  facts  that  the  next  Parliament  regularly 
repealed  the  statute  and  that  this  is  the  only  known 
instance  in  which  the  king  went  to  such  an  extreme. 
When  the  king,  by  countenancing  Parliament's  repeal, 
acknowledged  that  he  could  not  annul  a  statute,  he 
acknowledged  that  there  was  now  in  England  a  second 
source  of  legislative  authority.  It  was  no  longer  a 
matter  of  a  specially  solemn  kind  of  ordinance  with  a 
large  backing,  with  the  king  still  in  theory  the  one 
source  of  law;  but  a  statute,  to  make  which  entirely 
independent  elements  acted  in  common,  any  one  of 
which,  king,  Lords,  or  Commons,  could,  by  refusing  to 
co-operate,  exercise  a  veto  power.  The  old  Roman 
theory  had  been  broken,  and  the  people,  through  their 
elected  representatives,  made  written  law.  Ordinances 
decreased  in  number  and  importance;  always  some- 
what temporary  in  character,  meeting  conditions  as 
they  arose  but  without  much  reference  to  the  future, 
they  became  after  this  more  strictly  such.  There  has 
always  been  a  field  for  them  in  the  intervals  between 
Parliaments  or  upon  occasions  when  immediate  action 
was  necessary.  They  are  known  to-day  as  Orders- 
in-Council.  Even  in  this  limited  scope,  they  did  not 
remain  a  permanent  means  of  infringing  upon  statutes ; 
for  Parliament  eventually  gained  such  control  over 
king  and  Council  as  to  control  their  legislation. 

While  the  king  only  once  attempted  to  annul  a 
statute,  he  had,  besides  his  use  of  ordinances,  other 

»  A.  and  S.,  document  63.  »  Jhid.,  document  63. 


Parliament  373 

less  radical  means  of  attack.  An  important  and  long- 
continued  one  was  his  use  of  the  dispensing  and  sus- 
pending powers.  These  grew  out  of  the  same  Roman 
root  as  his  power  to  create  or  annul  an  ordinance.  The 
maker  of  law  could  dispense  with  its  operation  in 
individual  cases  or  suspend  it  for  a  time  in  certain 
classes  of  cases.  Some  exercise  of  a  dispensing  power 
is  necessary  for  any  executive;  for  no  body  of  law, 
however  good,  can  be  enforced  with  absolute  rigidity 
without  working  much  actual  injustice.  The  right  to 
pardon  those  convicted  of  crime  is  the  commonest  il- 
lustration of  such  necessary  power.  But  evidence  is 
abundant  that  the  fourteenth-century  kings  so  used 
the  dispensing  and  suspending  powers  as  to  make  Par- 
liament feel  that  its  law-making  function  was  being 
seriously  crippled.  How  consciously  they  did  this  to 
fight  Parliament  it  is  hard  to  tell.  The  dispensing 
power,  which  was  then  the  more  common,  was,  in  the 
eyes  of  Parliament,  as  truly  an  invasion  of  the  legis- 
lative domain  as  the  creation  of  a  new  writ  in  Chancery 
or  the  extension  of  the  jurisdiction  of  the  Council.1 
It  was  often  used  in  the  reign  of  Edward  III.  practically 
to  license  crime,  pardons  being  given  before  the  accused 
were  brought  to  trial;  while  the  frequency  of  its  use 
and  the  character  of  the  crimes,  of  which  the  king  seems 
often  to  have  known  little,  discredited  it  still  further. 
Attempts  were  made  by  the  Commons  in  1328,2 
i33o,3  1347,  and  1351  to  do  away  with  the  abuse,  but, 
despite  the  promises  made  by  the  king,  it  continued. 
Under  Richard  II.,  a  statute  was  passed  forbidding 
the  issue  of  pardons  in  the  case  of  serious  crimes,  unless 

«  See  above,  pp.  208,  214,  215.  ?  A.  and  SM  document  56. 

3  Ibid.,  document  57. 


374        Period  of  Constitution  Making 

they  specified  the  nature  of  the  crime  and  contained 
the  name  of  the  culprit.  This  principle,  although 
often  violated,  has  remained  an  element  in  the  law  of 
pardons.  At  the  end  of  the  century,  nothing  haol  been 
done  to  regulate  the  dispensing  power  outside  the 
matter  of  pardons,  and  it  remained  a  vague  and 
dangerous  factor  in  the  royal  prerogative.  The 
suspending  power  was  then  seldom  used,  but  in 
it  there  lay  even  greater  possibilities  of  despotic 
action. 

Since  all  legislation  which  Parliament  initiated  in 
the  fourteenth  century  was  introduced  in  the  form  of 
petition,  it  was  necessary  in  engrossing  the  granted 
petition  as  a  law,  putting  it  in  statutory  form,  to  make 
changes  in  its  wording.  This  work  was  entrusted,  as 
was  natural,  to  the  judges  of  the  common -law  courts. 
In  this  connection,  is  one  of  the  earliest  illustrations  of 
the  subservience  of  the  judiciary  to  the  executive,  with 
a  resulting  tendency  upon  the  part  of  the  two  to  unite 
against  the  legislature.1  Advantage  was  sometimes 
taken  of  this  necessary  change  of  the  petitionary  form 
to  alter  the  meaning  of  the  act  or  even  to  make  sub- 
stantial additions  or  omissions.  This  was  a  danger 
from  which  Parliament  could  never  feel  entirely  free; 
it  was  inherent  in  the  system  of  initiating  legislation  by 
petition,  and  not  until  a  new  method  was  substituted 
in  the  next  century  did  it  cease.  As  a  result  of  these 
varied  experiences  in  law-making,  Parliament  became 
fully  conscious  of  itself  as  a  legislative  body  and  of  a 
profound  distinction  between  its  legislative  product 
and  that  of  king  and  Council. 

1  The  possibility  of  this  combination  has  been  one  of  the  very 
late  serious  faults  in  the  English  constitution  to  be  removed. 


Parliament  375 

C.  In  its  endeavours  to  control  taxation  and  legis- 
lation, Parliament  was  drawn  into  some  interference 
in  the  executive  functions  of  government.  How  in- 
evitable this  was  has  already  been  incidentally  shown. 
It  remains  now  to  notice  more  directly  the  beginning 
of  a  line  of  development  which  has,  in  modern  times, 
resulted  in  complete  harmony  between  the  executive 
and  the  legislature,  with  the  latter,  representing  the 
people,  in  substantial  control.  In  using  these  terms 
for  departments  of  government,  it  must  be  remembered 
that  men  in  the  fourteenth  century  were  only  in  the 
vaguest  way  conscious  of  such  distinctions.  One  is 
prone  to  think  that  a  struggle  for  liberty  on  the  part  of 
the  people  began  at  this  time,  the  people  for  the  first 
time  being  able  to  act  in  an  effective  way  through  a 
representative  Parliament;  and  in  one  sense  such  a 
struggle  did  begin.  But  the  participants  were  not 
conscious  of  it  as  such.  The  king  was  not  upholding 
royal  prerogative  against  government  by  the  people; 
he  was  simply  resisting  something  which  was  taking 
away  his  power,  without  seeking  to  justify  or  explain  his 
action  upon  any  dogmatic  basis.  The  House  of  Com- 
mons was  conscious  of  administrative  abuses;  its  con- 
stituents were  actually  suffering  from  them;  it  sought 
an  extension  of  power  to  remedy  these  abuses,  but 
uninfluenced  by  a  theory  of  government  by  the  people. 
And  there  was  no  limit  to  the  extension  of  power  it 
sought;  for,  being  unconscious  of  any  categories  of 
government,  it  could  know  of  no  propriety  or  expedi- 
ency in  observing  limits  beyond  which  the  legislature 
should  not  extend  its  activities.  So  king  and  Parlia- 
ment began  their  long  conflict  in  the  naive,  short- 
sighted, unidealistic  fashion  in  which  nearly  all 


376        Period  of  Constitution  Making 

medieval  conflicts  were  fought.  However,  the  relations 
between  the  two  in  the  fourteenth  century  were  far 
from  continuously  hostile;  in  many  instances,  they 
worked  together  for  common  ends  with  much  good 
feeling. 

As  the  first  business  of  Parliament  was  to  grant 
money,  an  early  and  natural  extension  of  its  activity 
was  towards  ensuring  honesty  and  accuracy  in  its 
collection  and  in  showing  an  interest  in  its  expenditure.1 
In  1340,  parliamentary  commissioners  were  appointed 
to  audit  the  accounts  of  the  collectors  of  recent  sub- 
sidies2; and  in  1353  a  subsidy  was  granted  with  the 
stipulation  that  it  was  to  be  used  only  for  the  war. 
This  interest  in  public  business,  in  the  character  and 
work  of  public  officials,  contributed  largely  to  the 
radical  statute  of  i34i3:  the  auditing  commissions 
were  renewed,  the  appointments  of  important  public 
officials  and  judges  were  to  be  sanctioned  by  Parlia- 
ment, and  in  that  body  these  men  were  to  swear  to  the 
observance  "of  the  Great  Charter,  and  the  Charter  of 
the  Forest,  and  all  other  statutes,  without  breaking  any 
point."  4  This  act  was  premature,  and  in  the  following 
Parliament  the  king  secured  its  repeal.  When,  in 
modern  times,  control  of  the  ministry  was  finally  se- 
cured, it  was  by  a  different  method,  but  the  statute  of 
1341  is  an  interesting  prophecy  of  one  of  Parliament's 
most  important  achievements. 

Another  product  of  the  same  general  line  of  activity 
was  parliamentary  impeachment,  the  first  instance  of 

1  See  the  closing  words  of  article  i  in  the  famous  statute  of  1340, 
A.  and  S.,  p.  105  ;  also  document  61. 

*  Ibid.,  document  61.  For  later  examples  of  parliamentary 
supervision  of  accounts,  see  ibid.,  documents  83-86. 

»  See  above,  pp.  371,  372.  •  A.  and  S.,  p.  108. 


Parliament  377 

which  was  in  I376.1  Impeachment  was  the  trial 
before  the  House  of  Lords  of  persons,  generally  officials, 
accused  by  the  House  of  Commons  of  a  public  offence ; 
the  House  of  Lords  judged,  the  House  of  Commons 
prosecuted.  This  right  to  bring  to  trial  the  king's 
most  powerful  ministers,  in  a  manner  calculated  to 
secure  justice  as  it  could  not  be  secured  in  the  royally 
dominated  or  locally  intimidated  courts,  and  for 
offences  which,  though  serious,  might  not  be  technically 
admissible  there,  was  one  of  the  most  substantial  and 
beneficent  extensions  of  power  made  by  Parliament  in 
this  or  the  succeeding  century.  Parliament  found  by 
experience  that  the  control  of  the  king's  ministers  was 
the  best  way  to  control  the  king. 

Two  more  general  and  less  important  ways  in  which 
Parliament  touched  the  administration  remain  to  be 
mentioned.  Throughout  the  fourteenth  century,  the 
Commons  were  very  diligent  in  pointing  out  administra- 
tive abuses,  the  burden  of  the  complaint  being  that  the 
king's  judges  and  other  officials,  especially  the  sheriffs, 
were  not  vigorously  and  impartially  administering  the 
laws. 2  To  get  such  information  was  one  of  the  original 
objects  with  the  king  in  summoning  a  representative 
assembly,  and  he  made  much  use  of  it  in  early  times. 
He  took  the  Commons  into  his  confidence  and  quite 
regularly  asked  their  advice  upon  judicial  matters  and 

1  A.  and  S.,  document  82.  See  also  the  interesting  impeachment 
of  Suffolk  in  1386.  Ibid.,  document  93.  Treason  was  first  defined 
by  statute  in  1352.  (A.  and  S.,  document  72.)  This  may  have 
suggested  the  propriety  of  indicting  men  for  treasonable  offences  in 
Parliament.  On  the  origin  of  impeachment,  see  Medley,  English 
Constitutional  History,  pp.  162,  163. 

1  Taswell-Langmead,  English  Constitutional  History,  p.  215,  note 
2;  A.  and  S.,  pp.  94,  95.  and  documents  56  and  57. 


Period  of  Constitution  Making 

upon  the  best  methods  of  holding  his  officials  in  check. 
The  second  matter  has  to  do  with  Parliament's  par- 
ticipation in  foreign  affairs.  In  the  reign  of  Edward 
III.,  the  war  with  France  was  the  one  great  subject 
of  popular  interest,  while  the  troubles  with  Scotland 
were  of  no  small  importance.  The  voting  of  money  to 
maintain  these  great  undertakings  almost  necessarily 
made  Parliament  a  counsellor  at  the  crises,  when  it 
came  to  questions  of  concluding  peace  or  continuing 
the  strife  and  concerning  the  great  public  expense 
entailed.  Parliament  was  thus  consulted  many  times 
and,  on  several  occasions,  did  not  hesitate  to  express 
its  mind  pretty  freely;  but  in  the  latter  part  of  the 
reign  it  showed  a  disinclination  to  give  positive  advice ; 
it  shrank  from  the  responsibility  and  preferred  not  to 
be  hampered  in  its  financial  dealings  with  the  sovereign 
by  too  avowed  a  partnership  in  his  enterprises.1 

8.  Parliament  in  the  Fifteenth  Century.  The  Lan- 
castrian Constitution. — The  distinctly  creative  period  of 
English  constitutional  history  ended  with  the  four- 
teenth century.  While  by  no  means  denying  that 
things  of  constitutional  importance  originated  in  the 
fifteenth  century,  it  is  nevertheless  true  that  that  period, 
contrasted  with  the  three  preceding  centuries,  was 
eminently  a  time  of  practice  and  precedent,  of  adjust- 
ments and  accommodations  and  the  working  out  of 
details.  It  was  a  time  also  of  dawning  understanding 
and  appreciation  of  the  great  things  which  had  been 
unconsciously  wrought,  and  hence  contained  a  prophecy 
of  the  struggle  for  their  preservation.  The  fifteenth 

1  For  Parliament's  great  efforts  and  considerable  accomplish- 
ments in  controlling  the  Council  early  in  Richard  II. 's  reign,  see 
above,  pp.  292-294. 


Parliament  379 

century  has  already  been  several  times  trespassed  upon 
in  order  to  maintain  an  integral  treatment  of  certain 
themes,  and  the  purpose  here  is  largely  supplementary, 
to  deal  with  those  matters  which  especially  characterise 
the  period  and  which  have  found  no  logical  place  in  the 
preceding  divisions. 

Two  acts  of  the  fourteenth  century  have  been  noted 
which  provided  that  Parliaments  be  held  annually  or 
more  frequently  if  necessary.1  The  king  had  been  in 
the  habit  of  assembling  his  feudal  court  at  least  three 
times  a  year,  and  when  representatives  came  to  sit 
with  the  Curia  Regis,  it  was  natural  that  the  time  and 
frequency  of  meeting  should  have  been  influenced  by 
the  older  practice;  moreover  there  was  much  for  the 
larger  assemblies  to  do  and  expedients  for  economising 
time  and  labour  had  not  been  devised. 2  The  sessions 
were  usually  short,  for  the  House  of  Commons  was 
made  up  of  men  who  had  much  business  to  attend  to 
at  home;  prolonged  absences  were  serious  and  harvest 
time  must  not  be  encroached  upon.  But  as  election 
to  Parliament  became  a  thing  more  to  be  desired, 
richer  men  were  returned  both  from  county  and  borough, 
men  who  were  not  so  anxious  to  get  home.  Also  the 
scheme  of  voting  taxes  for  more  than  one  year  began 
to  be  used  in  the  reign  of  Edward  III.;  and  before  the 
end  of  the  fourteenth  century,  it  was  found  that  a  Par- 
liament might  on  occasion  be  prorogued  instead  of 
dissolved,  thus  making  it  unnecessary  to  have  a  new 
election  for  every  new  session.  For  these  reasons, 

»  See  above,  pp.  355,  356. 

2  "In  1328  no  less  than  four  assemblies  had  been  called.  In 
1332  and  in  1340  Parliament  came  together  three  times  within  the 
twelve  months,  and  twice  in  1334  and  again  in  1352." — Medley, 
English  Constitutional  History,  p.  259. 


380        Period  of  Constitution  Making 

annually  elected  Parliaments  ceased.  Sovereigns  never 
seem  to  have  felt  obliged  to  adhere  strictly  to  the 
statutes  requiring  them,  and  in  the  fifteenth  century 
these  fourteenth-century  statutes,  though  still  unre- 
pealed,  were  entirely  unheeded.  The  frequency  of 
new  Parliaments  and  the  frequency  and  length  of 
sessions  came  to  be  determined  almost  wholly  by  the 
circumstances  and  needs  of  the  time.  The  power  of  the 
king  to  summon,  prorogue,  or  dissolve  Parliament 
at  pleasure  was  unquestioned.  Under  the  Yorkists, 
there  were  longer  intervals  without  Parliaments  than 
ever  before.  It  was  to  be  expected  of  a  family  with 
such  consciously  legitimate  claims  to  the  throne,  and 
although  the  Yorkists  were  not  strong  enough  serious- 
ly to  attack  the  constitution,  their  policy  with  respect 
to  Parliament  contained  a  hint  of  what  might  take 
place  in  the  case  of  some  future  legitimists. 

An  important  indication  of  the  growing  maturity  of 
Parliament  was  the  acquisition  of  the  Speaker  by  the 
House  of  Commons.  There  is  no  better  evidence  of 
the  very  gradual  and  unconscious  development  of  that 
body  than  the  fact  that  more  than  a  century  passed 
after  the  king  first  summoned  representatives  to  a 
central  assembly  before  those  representatives  had  a 
presiding  officer.  The  Speaker  originated  at  the  begin- 
ning of  Richard  II. 's  reign,  but  during  that  reign  can 
hardly  be  regarded  as  representing  the  body  over  which 
he  presided,  being  usually  controlled  by  one  or  other 
of  the  masterful  factions  of  the  nobility  characteristic 
of  that  stormy  period.  Under  the  Lancastrians,  the 
Speaker  really  represented  the  Commons.  He  was 
nominated  by  them,  the  nomination  having  to  be 
confirmed  by  the  crown.  There  was  usually  little 


Parliament  381 

esprit  de  corps  among  the  Commons  and  so  little  mutual 
acquaintance  in  the  case  of  a  newly  elected  House  that 
a  sovereign  who  so  desired  could  practically  name  the 
Speaker.  This  was  regularly  the  case  during  most  of 
the  Tudor  period.  The  political  importance  of  the 
Speaker  might  be  very  great,  for  he  was  the  official 
medium  of  communication  between  the  Commons  and 
the  king;  a  servile  Speaker  could  render  the  work  of 
the  House  abortive  in  very  many  ways.  The  members 
of  the  lower  House  did  not  enjoy  the  right  of  individual 
access  to  the  sovereign  possessed  by  the  Lords,  and 
the  Speaker  was  their  mouthpiece,  bound  to  represent 
truthfully  their  sentiments.  In  the  fifteenth  century, 
he  was  almost  always  a  knight  of  the  shire,  but  with 
the  rise  in  importance  of  the  borough  members  at  the' 
end  of  the  century  this  ceased  to  be  the  rule. 

Fifteenth-century  changes  in  Parliament's  exercise 
of  power  and  in  the  relations  of  its  Houses  are  now  to  be 
considered.  The  interruption  to  the  practice  of  post- 
poning money  grants  to  redress  of  grievances,  occa- 
sioned by  the  absolutist  tendencies  of  Richard  II. 's 
reign,  was  a  matter  of  concern  in  the  early  years  of  his 
Lancastrian  successor.  In  1401,  the  Commons  prayed 
the  king  that  they  might  learn  his  responses  to  their 
petitions  before  any  grants  were  made.  Henry  refused 
to  accede  to  this  on  the  partially  unhistorical  ground 
that  it  had  not  been  the  practice  of  his  ancestors  and 
predecessors. *  But  the  futility  of  this  attitude  on  the 
part  of  the  king  is  shown  by  a  consideration  of  the 
essential  elements  in  the  transaction:  a  determined 
House  of  Commons  could,  under  all  ordinary  circum- 

1  A.  and  S.,  document  109. 


382        Period  of  Constitution  Making 

stances,  hold  out  longer  without  the  king's  favourable 
responses  than  the  king  could  without  the  money  which 
it  alone  could  give.  There  was  a  quite  steady  growth 
in  the  practice  of  postponing  grants  throughout  the 
fifteenth  century,  and  grants  with  more  or  less  specific 
conditions  attached  were  the  rule. 

There  arose,  however,  in  1407  a  problem  anent  the 
manner  of  granting  supply  in  which  inhered  some  con- 
stitutional questions  very  briefly  and  easily  disposed 
of  in  favour  of  the  Commons,  but  nevertheless  of  con- 
siderable importance.  The  king  and  Lords  had  had  a 
conference  relative  to  a  grant  of  money  to  be  made  by 
the  Parliament  then  in  session  and  had  concluded  upon 
a  tenth  and  fifteenth  and  a.  half.  This  was  evidently 
regarded  as  settling  the  matter,  but  of  course  the  Com- 
mons would  have  to  assent.  Accordingly  they  were 
asked  to  send  a  deputation  to  the  conference,  and  the 
twelve  men  sent  were  told  what  the  king  and  Lords 
had  determined  and  were  then  bidden  report  .it  to 
their  associates,  with  the  implication  that  speedy 
acquiescence  was  expected. 

Which  report  having  been  made  to  the  said  commons, 
they  were  greatly  disturbed,  saying  and  affirming  that  this 
was  in  great  prejudice  and  derogation  of  their  liberties; 
and  when  our  said  lord  the  king  heard  of  this,  not  wishing 
that  anything  should  be  done  at  present  or  in  time  to  come, 
which  could  in  any  way  turn  against  the  liberty  of  the 
estate,  for  which  they  were  come  to  parliament,  nor  against 
the  liberty  of  the  lords  aforesaid,  willed  and  granted  and 
declared,  with  the  advice  and  assent  of  the  said  lords,  in 
the  following  manner.  That  is  to  say,  that  it  is  lawful  for 
the  lords  to  discuss  among  themselves  assembled  in  this 
present  parliament,  and  in  every  other  in  time  to  come,  in 


Parliament  383 

the  absence  of  the  king,  concerning  the  estate  of  the  realm 
and  the  remedy  needful  to  it.  And  that  in  like  manner  it 
is  lawful  for  the  commons,  on  their  part,  to  discuss  together 
concerning  the  state  and  remedy  aforesaid.  Provided 
always  that  the  lords  on  their  part  and  the  commons  on 
theirs,  make  no  report  to  our  said  lord  the  king  of  any  grant 
granted  by  the  commons,  and  agreed  to  by  the  lords,  nor  of 
the  negotiations  of  the  said  grant,  before  the  said  lords 
and  commons  shall  be  of  one  assent  and  of  one  accord  in  the 
matter,  and  then  in  the  manner  and  form  customary,  that 
is  to  say  by  the  mouth  of  the  speaker  of  the  said  commons 
for  the  time  being,  to  the  end  that  the  said  lords  and  com- 
mons should  have  the  agreement  of  our  said  lord  the 
king. 1 

The  words  "granted  by  the  commons  and  agreed  to 
by  the  lords"  certainly  show  that  it  was  the  intention 
to  have  the  initiative  in  money  grants  lie  with  the 
Commons,  and  it  became,  in  the  fifteenth  century,  a 
recognised  part  of  the  constitution  that  all  money  bills 
must  originate  in  the  lower  House  as  standing  for  the 
poorer  part  of  the  community.  This  episode  of  1407 
resulted  in  the  first  conscious  formulation  of  the  prin- 
ciple. To  be  sure,  the  Commons  had  the  right  not  to 
concur  in  a  grant  originating  with  the  Lords  or,  as  in 
this  case,  with  the  king  and  Lords,  but  they  recognised 
the  amount  of  pressure  which  might  be  brought  to  bear 
in  favour  of  a  money  bill  once  formulated  and  that  the 
right  to  formulate  it  was  no  empty  one.  Another  right 
brought  out  with  great  distinctness  was  that  of  each 
House  to  carry  on  its  preliminary  discussions  inde- 
pendently of  the  other  and  both  independently  of  the 

1  This  is  part  of  the  so-called  "  schedule  of  indemnity  "  which  the 
king  ordered  entered  on  the  roll  of  Parliament.  A.  and  S.,  docu- 
ment 112. 


384        Period  of  Constitution  Making 

king,  and  that  the  king  was  to  have  no  concern  in  £ 
bill  until  the  Houses  had  become  a  unit.  These  prin- 
ciples, at  the  present  day  axiomatic  in  the  relations  of 
any  executive  and  legislature,  were  then  just  being 
worked  out  under  the  favouring  Lancastrian  condi* 
tions.  They  were  broken  many  times  in  the  despotic 
sixteenth  century;  but  their  memory -and  practice  were 
at  no  time  entirely  absent,  and  when  the  final  struggle 
with  the  Stuarts  came,  there  was  a  "medieval,  Lan- 
castrian constitution"  to  look  back  to  for  precedent 
and  inspiration. 

In  leaving  the  subject  of  money  bills,  it  should  be 
added  that,  before  the  end  of  the  middle  ages,  the  king 
had  invented  two  famous  methods  of  dodging  the  prin- 
ciple, established  in  1340,  that  there  could  be  no  taxa- 
tion without  the  consent  of  Parliament.  Forced  loans 
originated  with  Richard  II. ;  they  were,  as  the  name 
implies,  negotiated  without  the  option  of  the  lender, 
and  their  payment  was  always  a  precarious  matter. 
In  the  reign  of  Edward  IV., the  benevolence  was  invented. 
This  was  theoretically  a  free,  but  actually  a  forced, 
gift  taken  by  the  king  from  the  wealthier  people  of  the 
realm.  Benevolences  were  often  winked  at  by  the 
Commons,  who  felt  that  if  the  king  got  his  money  in 
this  way  he  would  be  less  likely  to  burden  the  poorer 
classes  of  his  people  with  regular  taxation.  "The 
difference  between  a  forced  loan  and  a  benevolence  or 
free  gift  is  not  easy  to  grasp;  for  a  loan  taken  at  the 
king's  pleasure  might  also  be  repaid  in  his  own  good 
time,  and  with  a  complaisant  Parliament  to  back  him 
the  distinction  entirely  disappeared."1  These  devices 
were  used  to  great  effect  by  Tudors  and  Stuarts  and 

«  Medley,  English  Constitutional  History,  p.  536. 


Parliament  3s  5 

were  supplemented  by  that  last  and  most  famous  dodge 
of  constitutional  taxation,  the  Stuart  "ship-money." 
They  were  not  used  after  the  Great  Rebellion. 1 

It  has  been  seen  that  a  vexatious  means  of  defeating 
Parliament's  legislation  was  the  alteration  of  the  word- 
ing of  granted  petitions  by  the  judges  who  engrossed 
them  as  statutes.2  At  the  beginning  of  the  second 
Lancastrian  reign,  this  was  made  a  matter  of  formal 
protest  by  the  Commons.  The  king  replied  that 
nothing  should  be  "enacted  contrary  to  their  asking 
whereby  they  should  be  bound  without  their  assent."* 
But  despite  this  promise,  there  was  still  danger  that 
the  thing  might  be  attempted  by  a  despotically  in- 
clined king.  The  really  effective  remedy  of  this  evil 
was  hit  upon  by  the  Commons  in  the  third  Lancastrian 
reign;  it  was  the  simple  expedient  of  doing  away  with 
the  petitionary  language  and  introducing  bills,  which 
were,  in  form  and  language,  completed  statutes  and 
became  such  by  the  united  assent  of  Commons,  Lords, 
and  king.  "Later  on  the  House  of  Lords  also  began 
to  originate  Bills,  which  were  sent  thence  to  the  Com- 
mons; and  it  gradually  became  the  established  rule  of 
Parliament,  that  with  the  exception  of  Money  Bills, 
which  must  come  from  the  Commons,  and  of  Bills 
affecting  the  Peerage  (e.g.  for  the  restitution  of  for- 
feited honours),  which  must  come  from  the  Lords,  all 
other  Bills  might  be  originated  in  either  House."* 

1  In  the  reign  of  Richard  III.,  a  statute  was  passed  abolishing 
benevolences  (A.  and  S.,  document  133).  This  was  afterwards  dis- 
regarded on  the  ground  that  Richard  was  a  usurper,  which  made 
laws  passed  during  his  time  invalid. 

z  See  above,  p.  374. 

»  A.  and  S.,  document  117. 

«  Taswell-Langmead,  English  Constitutional  History,  p.  250. 

95 


386        Period  of  Constitution  Making 

The  courts  attempted  during  the  Lancastrian  period 
to  supplement  fourteenth-century  legislation  on  the 
dispensing  power,  another  of  the  means  of  defeating 
Parliament's  law-making  which  survived  that  century. 1 
Very  subtle  distinctions  were  drawn  between  the  cases 
in  which  the  king  could  and  could  not  exercise  the 
pardoning  power.  It  was  found  difficult  to  apply  these 
in  the  practice  of  the  courts,  and  perhaps  their  only 
important  net  result  was  the  evolution  of  the  principle 
that  the  pardoning  power  could  not  be  so  exercised  by 
the  king  in  behalf  of  an  offender  as  to  deprive  a  third 
party  of  any  claim  which  might  have  resulted  from 
the  offence.  As  to  the  suspending  power,  various  at- 
tempts were  made  to  limit  it,  but  little  progress  was 
made.  Both  of  these  powers  remained  to  play  a  great 
part  in  the  unconstitutional  efforts  of  later  sovereigns, 
especially  the  Stuarts.  By  the  Bill  of  Rights,  the  sus- 
pending power  was  abolished,  while  the  dispensing 
power  was  placed  undereffective  parliamentary  control.2 

The  advances  which  Parliament  made  in  the  Lan- 
castrian period  in  its  control  over  taxation  and  legis- 
lation were  small  in  comparison  with  the  easy  and 
sweeping  successes  which  it  seemed  to  gain  over  the 
administration.  The  hard-fought  beginnings  in  this 
line  which  have  been  noted  in  the  fourteenth  century, 
where  masterful  kings  resisted  and,  in  some  lines, 
Parliament  drew  back  from  the  assumption  of  too 
great  responsibility,  gave  place  to  such  sudden  and 
thoroughgoing  control  over  king  and  ministry,  such 

>  See  above,  pp.  373,  374. 

2  A.  and  S.,  pp.  464,  469.  For  further  information  on  the  dis- 
pensing and  suspending  powers,  especially  in  modern  times,  see 
Anson,  Law  and  Custom  of  the  Constitution  i.,  297-305;  ii.,  228-230. 


Parliament  387 

modern  constitutionality,  that  one  begins  to  question 
its  genuineness.  Henry  IV.  was  of  necessity  a  parlia- 
mentary sovereign  in  a  sense  in  which  none  of  his  pre- 
decessors had  been ;  to  secure  his  family  upon  the  throne 
he  felt  obliged  to  be  on  good  terms  with  the  people  as 
represented  in  the  House  of  Commons.  The  first  and 
most  conspicuous  attempt  of  Parliament  in  the  adminis- 
trative line  was  to  control  the  appointment  of  ministers 
and  hold  them  strictly  responsible  for  their  acts.  This 
was  a  resumption  of  a  policy  that  was  very  marked 
in  the  early  part  of  Richard  II. 's  reign.1  Formally, 
Parliament  seldom,  if  ever,  attempted  to  come  quite 
so  near  the  actual  appointment  as  had  been  rashly  pro- 
posed back  in  i34i2;  but  during  most  of  the  Lancas- 
trian period,  the  king's  appointees  were  practically 
nominated  by  Parliament. 

In  1406,  the  Commons  gained  the  king's  assent  to  a 
lengthy  petition  of  thirty-one  articles  that,  at  first 
sight,  implies  as  great  an  achievement  in  constitutional 
government  as  anything  gained  in  the  seventeenth 
century.  In  the  first  article,  the  king  was  required  to 
"elect  and  name  sixteen  counsellors  and  officers  pleasing 
to  God  and  agreeable  to  his  people,  on  whom  he  could 
rely,  to  advise  him  and  be  of  his  Continual  Council  until 
the  next  Parliament,  and  a  reasonable  number  of 
whom  should  be  continually  about  his  person."  One 
cannot  read  of  this  limited  group  of  counsellors  and 
officers,  some  of  them  to  be  specially  near  the  king, 
and  of  the  implied  dependence  upon  Parliament  without 
the  thought  that  here  was  a  suggestion  of  the  Cabinet. 
It  indicated  the  direction  which  governmental  develop- 
ment would  take  when,  after  long  and  hard  experience, 

>  See  above,  pp.  292,  293.  *  Ibid.,  p.  371. 


388        Period  of  Constitution  Making 

the  people  through  Parliament  came  to  their  final  and 
maturer  control  of  the  executive.  In  the  articles  fol- 
lowing, there  was  much  about  the  limitations,  func- 
tions, and  responsibility  of  the  members  of  the  Council 
and  the  officials,  even  providing  for  their  being  sworn 
in  Parliament  to  observe  the  common  law  and  the 
statutes,  and  much  about  economy  in  the  administra- 
tion and  the  king's  household. 1  "These  articles  com- 
prise a  scheme  of  reform  in  government,  and  enunciate 
a  view  of  the  constitution  far  more  thoroughly 
matured  than  could  be  expected  from  the  events  of 
late  years."2  For  a  time  in  the  reign  of  Henry  IV., 
king,  Council,  and  Parliament  worked  together  in  an 
apparent,  if  somewhat  artificial,  harmony  that  anti- 
cipated the  days  of  William  III. 

Notwithstanding  this  activity  in  holding  the  ministry 
responsible,  it  so  happened  that,  after  the  reign  of 
Richard  II.,  Parliament  found  few  important  occasions 
to  exercise  its  power  of  impeachment  until  the  case  of 
the  Duke  of  Suffolk  in  1449.  But  during  the  rapidly 
changing  Parliaments  in  the  period  of  civil  war  and 
bitter  personal  animosities  immediately  following,  the 
judicial  procedure  of  impeachment  was  found  too  slow 
and  cumbersome  in  dealing  with  political  enemies. 
Bills  of  attainder  came  into  use,  and  until  1621  there 
was  not  another  impeachment.  These  bills  contained 
the  accusation  and  provided  for  the  punishment  of 
the  individuals  against  whom  they  were  instituted,  and 
were  introduced  and  passed  like  other  bills.3  Thus 

1  For  the  provision  quoted  and  a  summary  of  the  articles,  see 
Taswell-Langmead,  English  Constitutional  History,  pp.  252,  253. 

J  Stubbs,  Constitutional  History  of  England,  §  313. 

»  On  the  origin  of  Bills  of  Attainder,  see  Stubbs,  Constitutional 
History,  §371;  Pike,  Constitutional  History  of  the  House  of  Lords, 


Parliament  389 

there  was  no  need,  as  in  impeachment,  to  bring  in  evi- 
dence or  go  through  any  other  form  of  judicial  pro- 
cedure. Sometimes  bills  of  attainder  were  a  useful 
means  of  dealing  with  powerful  misdoers,  the  nature 
of  whose  offences  made  it  hard  to  furnish  evidence  at 
all  satisfactory  to  any  tribunal  which  regarded  itself 
as  a  court  of  law.  But  punishing  men  by  legislation 
has,  for  the  most  part,  been  an  abuse,  whether  as  in 
the  Yorkist  period,  a  means  of  wreaking  factional  ven- 
geance, or  when  the  Tudor  sovereigns  used  their  servile 
Parliaments  to  rid  themselves  by  this  means  of  their 
personal  opponents. 

Further  administrative  gains  of  Parliament  in  the 
Lancastrian  period  were  its  victory  in  the  matter  of 
auditing  public  expenditures,  a  function  first  claimed 
under  Edward  III.,  and  its  greatly  extended  counselling 
function  in  matters  of  national  policy.1  In  1406,  the 
public  accounts  were  demanded  and,  the  king  being  ill 
at  the  time,  it  was  replied  in  his  name  that  "kings  were 
not  wont  to  render  accounts."  This,  however,  seems 
to  have  been  but  a  feeble  remonstrance,  for  Parliament 
continued  to  take  measures  to  the  desired  end,  and  in 
1407  the  accounts  were  voluntarily  produced  by  the 
king.  From  that  time,  this  right  of  Parliament  was 
never  directly  denied.  In  counselling  the  king,  Parlia- 
ment no  longer  showed  the  fear  of  assuming  respon- 
sibility noticeable  in  the  preceding  century.  So  fully 
did  it  feel  itself  in  control  of  the  granting  and  expendi- 
ture of  money  that  all  crucial  questions  arising  in  the 
conduct  of  the  war  with  France  were  entertained  by  it, 

p.  229;  Anson,  Law  and  Custom  of  the  Constitution   {.,  337;  Medley, 
English  Constitutional  History,  pp.  163,  164. 
1  See  above,  pp.  376,  378. 


39°        Period  of  Constitution  Making 

and  there  were  few  matters  of  national  importance  in 
considering  which  the  king  did  not  take  into  his  con- 
fidence the  representatives  of  the  nation.  In  con- 
cluding this  summary  of  Parliament's  fifteenth-century 
means  of  controlling  the  king,  it  should  be  stated  that 
in  the  right  to  audit  public  accounts  and  in  impeach- 
ment and  bills  of  attainder  Parliament  possessed  a 
much  more  permanent  and  real  power  than  in  its 
more  striking  attempts  to  dictate  the  ministry. 

An  important  evidence  that  Parliament  was  maturing 
and  growing  more  conscious  of  itself  was  the  first  for- 
mulation of  what  came  to  be  technically  known  as  the 
privileges  of  Parliament.  It  is,  perhaps,  in  this  that  the 
fifteenth  century  can  base  its  most  important  claim  to 
creation.  Certain  privileges  and  immunities  had  long 
been  more  or  less  vaguely  recognised,  but  here  was 
conscious  insistence  upon  certain  fundamental  ones, 
by  statute  and  otherwise,  until  the  term  privilege  was 
becoming  definable  and  technical.1  In  1554,  at  the 

«  "In  the  wide  and  loose  application  of  the  word  'privilege'  the 
privileges  or  peculiar  functions  and  usages  of  the  house  of  lords  are 
distinguished  from  those  of  the  house  of  commons;  the  privileges 
of  individual  members  of  the  house  of  lords  may  be  distinguished 
from  the  privileges  of  individual  members  of  the  house  of  commons; 
both  again  have  common  privileges  as  members  of  the  parliament; 
and  the  lords  have  special  privileges  as  peers,  distinct^from  those 
which  they  have  as  members  of  a  house  co-ordinate  with  the  house 
of  commons."  Stubbs,  Constitutional  History  of  England,  §  448. 
It  is  with  the  "common  privileges  as  members  of  the  parliament" 
that  we  are  concerned  here,  and  it  was  in  this  connection  that  the 
term  took  on  its  technical  significance.  The  important  general 
privileges  or  functions  of  the  two  Houses  have  been  noted  in  the 
consideration  of  parliamentary  powers,  and  in  Part  III.,  §  I.,  3, 
where  the  judicial  functions  of  the  House  of  Lords  were  mentioned. 
For  an  exhaustive  enumeration  under  the  categories  named  in  the 
passage  cited,  see  Stubbs,  Constitutional  History,  §§  448-453. 


Parliament  391 

opening  of  Parliament,  the  Speaker  of  the  House  of 
Commons  first  made  the  formal  request  of  the  sovereign 
to  recognise  the  three  great  privileges;  and  after  1571 
such  request  at  the  opening  of  each  Parliament  became 
regular. *  The  three  privileges  are  these :  freedom  of 
access  to  the  sovereign,  by  the  Lords  individually  and 
by  the  Commons  through  their  Speaker;  freedom  from 
arrest  or  molestation  during  the  time  of  Parliament; 
freedom  of  speech. 2  Their  origin  and  how  they  gained 
recognition  in  the  fifteenth  century  are  now  to  be  con- 
sidered. 

Freedom  of  access  was  almost  always  recognised 
by  the  sovereign.  Each  peer  had  the  right  on  the 
ground  that  he  was  an  hereditary  counsellor  of  the 
crown.  This  did  not  mean,  of  course,  that  he  was  a 
member  of  the  Council;  the  right  went  back  to  the 
parent  stem  of  both  Council  and  House  of  Lords,  the 
Curia  Regis,  in  which  the  king's  vassals  were  in  per- 
sonal relation  with  their  suzerain.  The  Speaker  of 
the  House  of  Commons  was  the  result  of  a  growing 
demand  for  a  regular  intermediary  between  that  body 

1  Prothero,  Statutes  and  Constitutional  Documents,  Introduction, 
p.  Ixxxvii. 

J  For  the  first  record  of  the  exact  words  in  which  the  request  was 
made,  seeibid.,p.  117.  The  privilege  numbered  second  in  this  request 
was  not  usually  reckoned  one  of  the  great  privileges.  In  the  words 
of  the  speaker,  it  was  "that  in  repairing  from  the  Nether  House  to 
your  Majesty  or  the  Lords  of  the  Upper  House,  to  declare  their 
(the  Commons')  meanings,  and  I  mistaking  or  uttering  the  same 
contrary  to  their  meaning,  that  then  my  fault  or  imbecility  in  de- 
claring thereof  be  not  prejudicial  to  the  House,  but  that  I  may 
again  repair  to  them,  the  better  to  understand  their  meanings  and 
so  they  to  reform  the  same."  This  natural  request  was  made  in 
perhaps  clearer  language  in  the  very  early  days  of  the  Speaker.  See 
the  Speaker's  request  for  the  privileges  of  Parliament  in  1401.  A. 
and  S.,  document  107. 


392        Period  of  Constitution  Making 

and  the  king.  Through  him,  the  king  spoke  to  the 
Commons  and  the  Commons  to  the  king.  To  have  at 
all  times  the  right  to  petition,  counsel,  or  remonstrate 
with  their  sovereign  through  their  chosen  representa- 
tive was  justly  regarded  by  the  Commons  as  a  very 
fundamental  privilege. 

In  connection  with  most  primitive  assemblies  that 
were  in  any  way  identified  with  the  king,  is  to  be  found 
some  idea  of  a  royally  sanctioned  safe-conduct;  the 
king's  peace  was  to  abide  in  his  assembly  and  was  to 
extend  to  the  members  in  coming  to  it  and  returning 
from  it.  Naturally,  these  royal  sanctions  applied  to 
Parliament  as  soon  as  it  was  in  existence.  But  as 
time  went  on,  molestation  of  members  was  more  likely 
to  be  through  some  process  of  law  than  through  direct 
bodily  injury  or  restraint. l  Unless  Parliament  could 
keep  its  membership  intact,  free  from  outside  inter- 
ference, whether  or  not  the  interference  was  with  the 
motive  of  embarrassing  its  action,  it  could  never  be 
confident  of  any  accomplishment.  Early  in  Henry 
IV.  's  reign,  a  request  was  made  that  threefold  damages 
be  exacted  of  any  one  assaulting  members  on  their  way 
to  Parliament.  This  request  was  not  granted,  but 
what  the  king  considered  a  substantial  protection  was 
being  enforced  at  that  time.  In  1 42  9,  Parliament  asked 
that  the  general  principle  be  laid  down  "that  no  one  of 
your  said  lieges,  that  is  to  say,  lords,  knights  from  your 
counties,  citizens,  burgesses,  in  your  parliaments  to 
come,  their  servants  or  familiars,  be  at  all  arrested  nor 
detained  in  prison  during  the  time  of  your  parliament, 

1  But  there  may  be  a  "modern  importance  of  this  point  as  a  point 
of  privilege,  rather  in  the  threat  of  violence  than  in  the  actual 
infliction." — Stubbs,  Constitutional  History,  §  452. 


Parliament  393 

except  for  treason,  felony,  or  surety  of  the  peace  as 
was  said  before."  But  this  the  king  was  not  ready  to 
grant. 1  However,  he  allowed  at  the  same  time  a  speci- 
fic instance  of  such  immunity  in  the  case  of  a  member's 
servant  who  had  be.en  arrested  in  an  action  of  trespass. 
In  1332,  a  statute  was  passed  allowing  double  damages 
in  case  of  assault  upon  a  member  on  the  way  to  Parlia- 
ment. In  1453,  came  the  famous  case  of  Speaker 
Thorpe,  the  only  exception  to  the  privilege  of  freedom 
from  arrest  in  the  fifteenth  century  and  manifestly  the 
result  of  the  bitter  partisanship  of  the  time. 2  There 
were  many  cases  in  the  last  half  of  the  century  which 
confirmed  the  privilege,  one  of  the  most  prominent 
being  that  of  Walter  Clerk,  who  represented  the  borough 
of  Chjppenham  in  1460.3  By  the  end  of  Edward  IV. 's 
reign,  the  privilege  had  become  established,  as  also  a 
method  of  procedure  in  case  of  its  breach. 

The  privilege  was  in  no  case  extended  to  imprisonment 
for  treason,  felony,  or  for  security  of  the  peace:  it  was  loosely 
allowed  to  the  servants  in  attendance  on  members,  and  it 
was  claimed  for  a  time  preceding  and  following  as  well  as 
during  the  session.  The  length  of  this  period  was  variously 
stated,  and  has  not  been  legally  decided.  The  general 

1  A.  and  S.,  document  122. 

2  Thorpe  was  a  Lancastrian  and  an  enemy  of  the  Duke  of  York ; 
he  was  arrested  at  the  latter's  instigation  for  non-payment  of  a  fine 
imposed  for  a  trespass.    The  Lords  consulted  the  judges,  who  some- 
what grudgingly  admitted  that  the  privilege  should  be  allowed,  but 
carefully  disclaimed  any  right  to  determine  the  matter,  which,  they 
said,  lay  wholly  with  the  Lords.     The  Lords,  under  Yorkist  influence 
decreed  that  Thorpe  should  remain  in  prison. 

3  The  record  of  this  case  especially  well  illustrates  how  the  matter 
was  regarded  and  dealt  with  at  this  time.     See  A.  and  S.,  document 
127. 


394        Period  of  Constitution  Making 

belief  or  tradition  has  established  the  rule  of  forty  days 
before  and  after  each  session.1 

The  third  privilege  named,  freedom  of  speech,  was 
by  far  the  most  important,  though  there  could  be  no 
surety  of  its  exercise  until  freedom  from  arrest  had 
been  established.  When  a  king  conceded  freedom  of 
speech,  he  was,  consciously  or  unconsciously,  conceding 
that  Parliament  was  a  higher  power  than  he;  con- 
versely, there  could  be  no  assured  government  by  the 
people  unless  their  representatives  had  unquestioned 
possession  of  this  privilege.  Thus  only  the  House  of 
Commons  was  concerned  in  its  vindication,  and  only  in 
its  connection  with  that  House  could  it  be  a  matter  of 
constitutional  importance. 2  As  soon  as  the  House  of 
Commons  can  be  spoken  of  as  existing,  it  exercised  this 
privilege. 3  Many  matters  concerning  the  king's  powers 
were  freely  discussed  and,  until  the  very  end  of  Edward 
III.'s  reign,  such  freedom  was  absolutely  unquestioned. 
In  1476,  Peter  de  la  Mare,  who  seems  to  have  been 
acting  in  the  capacity  which  was  presently  to  be  that 
of  Speaker,  was,  after  the  dismissal  of  Parliament 
in  that  year,  imprisoned  at  the  instance  of  John  of 
Gaunt.  He  had  been  very  bold  and  pointed  in  pre- 
senting to  the  duke  Parliament's  opinion  of  the  govern- 

1  Stubbs,  Constitutional  History,  §  452. 

3  The  Lords,  of  course,  possess  the  right  equally  with  the  Com- 
mons, and  thus  it  is  considered  one  of  the  common  privileges  of 
Parliament.  But  it  seems  never  to  have  been  an  issue  with  the 
Lords.  As  Stubbs  says,  "he  would  have  been  a  bold  king  indeed 
who  had  attempted  to  stop  discussion  in  the  house  of  lords." — 
Ibid.,  §  451. 

•  Parliament  was  so  primitive  a  thing  in  1301  that  the  imprison- 
ment of  the  knight  Keighley,  because  he  presented  for  the  barons 
a  petition  which  exasperated  the  king,  seems  hardly  a  case  in  point. 
—Ibid.,  §§  181,  451. 


Parliament  395 

ment's  financial  malversation .  It  was  a  time  of  faction , 
and  the  next  Parliament  was  packed  in  the  duke's 
favour;  but  some  attempt  looking  to  the  release  and 
fair  trial  of  de  la  Mare  was  made,  showing  that  there 
was  a  feeling  that  parliamentary  right  had  been  trans- 
gressed. 

In  1397,  a  bill  was  introduced  in  the  House  of  Com- 
mons containing  one  clause  which  particularly  angered 
the  king.  It  attacked  the  extravagance  of  the  court, 
asserting  that  many  bishops,  lords,  and  ladies  were 
living  there  at  the  king's  expense.  Richard  felt  tnat 
this  was  in  special  derogation  of  his  prerogative  and 
demanded  the  name  of  the  man  responsible  for  this 
clause.  Acting  for  the  Commons,  the  Speaker  gave 
the  name  of  Sir  Thomas  Haxey.  Haxey  was  a  clerical 
proctor,  attending  even  at  that  late  date  under  the 
pramunientes  clause. *  The  king  and  Lords  immedi- 
ately enacted  an  ordinance  making  it  treason  to  move 
in  Parliament  anything  touching  the  king's  royalty, 
and  under  this  ex  post  facto  law  Haxey  was,  two  days 
after,  condemned  to  death.  Perhaps  the  king  had 
no  real  intention  to  execute  him ;  at  any  rate,  the  arch- 
bishop claimed  benefit  of  clergy  for  him  and  the  claim 
was  allowed  by  the  king.  Three  months  later,  he 
was  released.  But  the  first  Parliament  of  Henry  IV., 
assembled  in  the  Fall  of  1399,  was  far  from  satisfied  to 
let  the  matter  rest  in  this  negative  condition.  They 
claimed  that  "the  said  Thomas  was  adjudged  a  traitor, 
and  forfeited  all  that  he  had,  contrary  to  the  right  and 

1  See  above,  p.  331.  The  Commons  assumed  at  this  time  a  very 
humble  attitude  and  raised  no  claim  of  privilege.  Possibly  they 
did  not  regard  Haxey  as  a  member  of  their  House;  but  there  is  no 
doubt  that  they  were  intimidated  by  king  and  Lords,  for  they 
acknowledged  an  impropriety  in  entertaining  the  bill. 


396        Period  of  Constitution  Making 

custom  which  had  been  used  before  in  Parliament,  in 
destruction  of  the  customs  of  the  commons."  And  a 
reversal  of  the  former  judgment  in  the  case  appears 
upon  the  roll  of  Parliament  in  these  words: 

The  king  wills,  by  the  advice  and  assent  of  all  the  lords 
spiritual  and  temporal,  that  the  judgment  rendered  against 
Thomas  Haxey,  clerk,  in  the  parliament  held  at  Westminster 
in  the  twentieth  year  of  the  late  king  Richard,  be  wholly 
annulled,  reversed,  repealed  and  made  void  and  held  of 
no  force  or  effect ;  and  that  the  said  Thomas  be  reinstated 
in  his  name  and  reputation,  and  made  and  held  an  able 
person  such  as  he  was  before  the  said  judgment  was 
rendered — as  in  the  record  made  thereof  and  enrolled  before 
in  this  roll  of  parliament  as  appears  more  at  length.1 

This  notable  vindication  of  the  right  of  freedom  of 
speech  at  the  end  of  the  fourteenth  century  was  a  most 
valuable  asset  for  the  Commons  in  the  struggle  for  this 
vital  privilege  which  was  to  last  nearly  three  hundred 
years.  It  was  the  earliest  clear  indication  on  the  rolls 
of  Parliament  of  the  recognition  of  a  valuable  parlia- 
mentary custom  that  must  be  preserved. 

The  second  Parliament  of  Henry  IV.,  assembling  in 
January,  1401,  was  well  placed  to  follow  up  this  begin- 
ning. The  needs  of  the  king  were  very  great,  as  shown 
by  the  opening  speech  of  the  Chief  Justice.  This  gave 
the  Commons  a  hold  upon  Henry  which  they  were  quick 
to  see ;  they  were  a  little  nettled  at  the  tone  of  the  speech, 
which  bade  them  give  more  than  usual  attention  to  the 
affairs  of  the  nation  and  cautioned  no  one  to  go  home 
until  the  business  was  over ;  and  they  were  very  fortu- 
nate in  the  temper  of  their  Speaker,  Sir  Arnold  Savage. 

>  A.  and  S.,  document  105. 


Parliament  397 

The  Speaker's  first  address  to  the  king  suggests  those 
regular  requests  for  privilege  with  which  the  Parlia- 
ments of  Elizabeth  were  opened.  He  asked  "that 
the  said  commons  should  have  their  liberty  in  parlia- 
ment as  they  had  had  before  this  time  and  that  this 
protestation  should  be  recorded  in  the  roll  of  parlia- 
ment." This  "seemed  honest  and  reasonable  to  the  king 
and  he  agreed  to  it."  The  Speaker  further  prayed  that 
the  Commons  might  have  "good  advice  and  delibera- 
tion "  on  the  matters  brought  before  them  "without  be- 
ing suddenly  called  upon  to  reply  to  the  most  important 
matters  at  the  end  of  parliament,  as  had  been  done 
before  this  time."  The  king  replied  that  it  was  his 
intention  "to  follow  this  order  of  action  and  that  he 
did  not  imagine  any  such  subtlety,  also  that  they  should 
have  good  advice  and  deliberation  from  time  to  time 
as  the  need  demanded." 1  Three  days  later,  a  further 
point  was  pressed,  perhaps  with  the  Haxey  case  in 
mind.  The  Speaker,  in  another  address  to  the  king, 
stated  on  behalf  of  the  Commons  "how  on  certain 
matters  moved  among  them,  it  might  happen  in  the 
future  that  certain  of  their  companions,  out  of  complai- 
sance to  the  king,  and  for  their  own  advancement, 
should  recount  to  our  said  lord  the  king  such  matters 
before  they  had  been  determined  and  discussed  or 
agreed  upon  among  the  commons,  by  reason  of  which 
the  said  lord  our  king  might  be  grievously  moved 
against  the  said  commons  or  some  of  them."  The 
reply  of  the  king  was  '  'that  it  was  his  will  that  the  said 
commons  should  have  deliberation  and  advice,  to  dis- 
cuss and  treat  of  all  matters  among  themselves,  in 
order  to  bring  them  to  a  better  end  and  conclusion,  in 

»  A.  and  §.,  document  107. 


398        Period  of  Constitution  Making 

so  far  as  they  know  how,  for  the  welfare  and  honour  of 
himself  and  of  all  his  realm.  And  that  he  would  not 
hear  any  such  person  or  give  him  credence,  before  such 
matters  had  been  shown  to  the  king,  by  the  advice  and 
with  the  assent  of  all  the  commons,  according  to  the 
purport  of  their  said  prayer."1  Thus  explicitly  was 
the  right  of  free  and  ample  deliberation  guaranteed  to 
the  Commons  at  the  very  beginning  of  the  Lancastrian 
period.  In  1407,  substantially  the  same  promise  was 
repeated.2  The  privilege  seems  to  have  remained 
unquestioned  until  the  arrest  of  Speaker  Thorpe  in 
I453.3  Two  privileges  were  invaded  in  this  case: 
Thorpe  was  arrested  while  he  was  a  member  of  Parlia- 
ment and  manifestly  because  of  things  he  had  done  and 
said  in  Parliament.  It  has  already  been  seen  how  un- 
satisfactorily the  case  resulted. for  the  Commons,  who 
practically  acknowledged  their  defeat  by  allowing  him 
to  remain  in  prison  and  choosing  another  Speaker. 
Thomas  Young,  a  burgess  for  Bristol,  was  imprisoned 
and  suffered  considerable  loss  of  property  for  something 
which  he  said  in  the  Parliament  of  1451.  Four  years 
later,  he  presented  a  petition  to  the  Commons,  in  which 
he  told  them  that  they  "ought  to  have  their  freedom 
to  speak  and  say  in  the  house  of  their  assembly  as  to 
them  is  thought  convenient  or  reasonable  without  any 
manner  challenge,  charge,  or  punition  therefore  to  be 
laid  to  them  in  anywise."4  Compensation  was  pro- 
cured him  at  the  king's  order.  But '  'matter  of  privilege 
as  it  was,  the  prayer  is  for  personal  and  private  indem- 
nity :  the  commons  seem  to  have  no  remedy  but  petition, 

»  A.  and  S.,  document  108.  *  Ibid.,  pp.  176,  177. 

J  See  above,  p.  393. 

•  Cited  in  Stubbs,  Constitutional  History,  §  451. 


Parliament  399 

and  no  atonement  is  offered  to  their  injured  dignity. 
So  the  case  stands  in  the  last  years  of  the  Lancastrian 
rule."1  Nothing  can  be  added  for  the  Yorkist  period. 
This  privilege,  so  clearly  recognised  at  the  beginning  of 
the  Lancastrian  period  was  not  to  receive  its  final  vindi- 
cation until  the  long  contest  between  king  and  Parlia- 
ment resulted,  nearly  three  centuries  after,  in  the 
vindication  of  the  Lancastrian  constitution.  The 
Bill  of  Rights  says  the  last  word  upon  the  subject  when 
it  declares:  "That  the  freedom  of  speech  and  debates 
or  proceedings  in  parliament  ought  not  to  be  impeached 
or  questioned  in  any  court  or  place  out  of  parliament." 2 
The  question  naturally  arises  here,  why  the  Lancas- 
trian constitution  had  to  wait  so  long  for  its  vindication ; 
whether  there  was  anything  about  it  or  the  conditions 
of  the  time  which  made  it  unfit  for  immediate  use,  or 
whether  it  simply  suffered  the  untoward  chance  of 
falling  a  prey  to  a  long  line  of  powerful  and  despotically 
inclined  sovereigns.  The  former  alternative  should 
probably  be  chosen.  Parliament  had  gained  power 
slowly  and  naturally  in  the  fourteenth  century.  In  the 
fifteenth,  with  the  Lancastrian  sovereigns  having  a 
parliamentary  title  and  almost  continually  dependent 
upon  it  for  money,  it  gained  control  over  the  executive 
very  rapidly.  But  while  the  king  was  being  thus 
limited,  a  very  formidable  amount  of  power  was  gather- 
ing in  the  hands  of  the  higher  nobility ;  in  some  respects, 
it  was  a  veritable  recrudescence  of  feudalism.  It  has 
been  noticed  how  the  Hundred  Years'  War  brought 
forth  generations  of  lawless  nobles,  whose  misdeeds  are 
usually  summarised  under  the  practices  of  livery  and 

»  Stubbs,  Constitutional  History,  §  451. 
A.  and  S.,  p.  465. 


400        Period  of  Constitution  Making 

maintenance.1  All  the  guarantees  of  liberty  which 
lay  in  jury  trial,  in  an  uncorrupted  bench,  and  genuinely 
popular  elections  to  Parliament  were  weakened.  Par- 
liament was  getting  control  over  the  king,  but  it  was 
not  getting,  and  was  not  of  a  character  to  get,  control 
over  the  thing  that  was  then  more  dangerous.  The 
replacing  of  the  constitutional  Lancastrians  by  the 
legitimate  Yorkists  and  the  far  more  important  and 
masterful  Tudors  has  sometimes  been  regretted  as  con- 
stitutional retrogression.  But  at  the  end  of  the  fif- 
teenth century  England's  salvation  lay  in  a  powerful 
executive,  for  it  alone  could  humble  the  nobility. 
The  Wars  of  the  Roses  marked  a  period  of  constitutional 
atrophy.  They  were  the  nobles'  own  wars,  and  the 
other  parts  of  the  population  were  little  concerned. 
There  was  nothing  to  do  but  wait  until  enough  blood 
had  been  let  to  relax  the  vigour  in  that  nexus  of  old 
family  feuds  and  personal  bitternesses  that  dated  clear 
back  to  the  reign  of  Edward  II.  All  parts  of  the  con- 
stitution fared  badly  enough  during  this  time.  If  asked 
which  suffered  the  least  damage,  one  must  probably 
say,  the  House  of  Commons.  It  was  pretty  openly  and 
regularly  packed,  and  reflected  the  sentiments  now  of 
the  red  and  now  of  the  white  rose.  But  it  is  significant 
that  it  was  packed ;  the  party  in  power  did  not  attempt 
directly  to  override  it.  And  this  was  also  true  after 
the  Yorkists  had  gained  the  throne.  Legitimists  as 
they  were,  they  had  to  have  Parliaments,  and  they  did 
not  think  of  the  House  of  Commons  as  something  to  be 
ignored  or  browbeaten ;  rather  as  a  part  of  the  govern- 
ment to  be  carefully  reckoned  with  and  manipulated. 
And  surely  the  House  of  Commons  reached  the  date 

»  See  above,  pp.  303,  347~349- 


Parliament  401 

1485  much  less  shaken  than  the  House  of  Lords;  it  had 
stood  for  the  most  substantial  element  in  England's 
population ;  the  momentous  union  of  knight  and  burgess 
had  wonderfully  vindicated  itself.  There  was  a  re- 
freshing and  immediate  clearing  of  the  air  when  the 
first  Tudor  was  on  the  throne.  He  seemed  the  embodi- 
ment of  quiet  and  orderly  strength.  His  coming  was 
a  prophecy  that  the  unquiet  local  elements  would  be 
forever  removed — elements  that,  for  nearly  two  centur- 
ies, had  threatened  to  destroy,  by  an  inglorious  process 
of  erosion,  England's  new  constitution  before  its  crea- 
tors had  had  time  to  learn  to  value  it  and  strive  for  it. 
The  field  was  cleared  for  the  conflict  between  the  great 
middle  class,  clad  in  the  constitutional  armour  already 
forged,  and  the  succession  of  incomparable  Tudor  and 
Stuart  personalities. 


INDEX 


Abbots,  grants  of  bookland  to, 
45;  members  of  the  witan,  58; 
attend  ecclesiastical  councils, 
66;  after  the  Conquest,  115, 
117,  119;  in  House  of  Lords, 
304-306,  331 ;  in  Convocation, 

333 

Access  to  sovereign,  381,391,392 
Aids,  106,  328,  362,  363 
Alfred,  18,  19,  54,  60 
Angles,  upon  the  continent,  9,  13 
Annual    Parliaments,    356    and 

note  2,  379,  380 
Appeals,    none    from    court    to 

court  in  Anglo-Saxon  system, 

20,    60;    lord's    court    not    a 

court  of,  182-184 
Appropriation  of  supplies,  376, 

378 

Arrest,  freedom  from,  391-394 
Assize,  135,  note  2,  222 
Assize,  Grand,  135 
Assize  of  Arms,  312,  324 
Assize   of  Clarendon,   136,  137, 

145,  158,  3J4  . 
Assize    of   darrein    presentment, 

I34,  i3S 

Assize  of  mort  d' ancestor,  134 
Assize  of  Northampton,  134, 137, 

158,  3*4 
Assize   of   novel   disseisin,    133, 

Assize  utrum,  132,  133,  144 
Attainder,  bills  of,  388-390 
Audit  of  accounts,  376,  389,  390 

B 

Baron,  Court,  181-184 

Barons,  meaning  of,  299,  note  2, 
304;  major  and  minor,  299- 
30 1 ;  minor,  as  part  of  a  middle 
class,  307 


Barony,  prelates  holding  by. 
107,  117,  326,  note  i,  335 

Battle,  trial  by,  see  Wagei 
of 

Becket,  Thomas,  240,  245—250 

Bede,  65 

Benefit  of  clergy,  249-252,  395 

Benevolences,  384,  385,  note 
i 

Bills  replace  petitions,  385 

Bishops,  in  shire  courts,  21,  67; 
grants  of  bookland  to,  45; 
members  of  witan,  58;  in 
primitive  church,  64;  peculi- 
arities of,  in  Anglo-Saxon 
times,  65;  attend  ecclesiastical 
councils,  66 ;  leave  shire  courts, 
91 ;  rights  of  excommunication 
limited,  113;  displacement  of, 
after  Conquest,  1 15 ;  as  barons, 
117,  change  in  habits  and 
character  after  Conquest,  117; 
courts  of,  239,  240;  relations 
to  benefit  of  clergy,  249-251; 
in  House  of  Lords,  304-306, 
331;  oppose  an  aid,  332;  in 
Convocation,  333 

Black  Death,  185 

Bookland,  42—46 

Boors,  47 

Borderers,  47 

Boroughs,  origin  and  early  his- 
tory of,  Pt.  I.,  §  II.,  3;  their 
courts,  33-35;  effect  of  Con- 
quest upon,  Pt.  II.,  §  II.,  3; 
their  courts  in  thirteenth 
century,  176,  177;  general 
condition  of,  in  thirteenth 
century,  322-324;  representa- 
tion or,  in  central  assembly, 
324—326;  the  electorate  in, 
350-354 

Bot,  27,  28 

Bracton,  183,  223-225,  268, 271 
284,  285,  note  i 


403 


404 


Index 


Britain,  before  Anglo-Saxon 
conquest,  7-9;  effect  of  in- 
sular character  of,  upon  An- 
glo-Saxon conquest,  9,  10,  15 

Britons,  effect  of  the  Anglo- 
Saxon  conquest  upon,  10-12 

Burgage  tenure,  36,  86,  note  i 


Cabinet,  123,  note  i,  294,  296, 

297,  387 

Canon  law,  204,  211-213,  223, 
227,  228,  244, 248,  note  2 

Canterbury,  Archbishop  of,  65; 
rivalry  with  Archbishop  of 
York,  65,  note  i;  relations 
with  king,  69;  relations  with 
Archbishop  of  York  settled 
after  Conquest,  114  and  note 

„  3 

Carucage,  109,  note  i,  315,  316 

Ceawlin,  51 

Celtic  survival  in  England,  15 

Ceorls,  1 7 ;  value  of  their  oaths, 

25 
Chancellor,  206,  210  (and  note 

2)-2i4,  218,  219,  292 
Chancellor    of    the    Exchequer, 

163,  164,  note i 
Chancery,  makes  writs,  139  and 

note    i;     Court    of,    211-219 
Christianity,     effect    of,     upon 

kingship,  52,  53;    see  Church 
Church,  grants  of  bookland  to, 

42-46,  passim;  Pt.  I.,  §  IV.; 

effects  of  the  Conquest  upon, 

Pt.  II.,  §  II.,  6;  courts,  Pt. 

III.,     §     I.,    5;    relation    to 

Magna  Carta,  261 
City,  a  cathedral  borough,  31; 

Roman  cities  in  Britain,  32 
Clergy,  tried  in  communal  courts, 

21,    67;    cease    to    deal    with 

secular  law,    228;   criminous, 

241-252;     representation    of, 

327,  331-335;  withdraw  from 

Parliament,  337,  338 
Clerk,  case  of,  393  and  note  3 
Cnute,  51,  54,  note  i,  57,  60,  62, 

104,  105,  147,  note  2 
Coke,  Sir  Edward,  232,  note  2, 

234,  275,  note  i 
Commendation,  39-42 


Common  law,  limited,  206-209; 
relations  to  equity,  214;  gen- 
eral account  of ,  Pt.  III.,  §1.,  4 

Common  Pleas,  Court  of,  164- 
166 

Commons,  House  of,  a  new 
source  of  law,  235;  dictates 
to  the  Council,  292 ;  origin  and 
early  form  and  composition 
of,  Pt.  III.,  §  III.,  2-6;  gains 
its  chief  powers,  Pt.  III.,  § 
III.,  7;  develops  powers  *n 
fifteenth  century,  Pt.  III., 

im.,8 

Commutation     of    service,     by 

vassals,  107,  108;  by  villeins, 

184,  185 
Compurgators,  24,  25,  141,  142, 

150,  250  and  note  2 
Confirmatio  Cartarum,  266,  274, 

361 
Conservators  of  the  peace,  190— 

194 
Constitutions  of  Clarendon,  132, 

133.  I36.  245-248 
Convocation,    116,    327;    origin 

of .  33  *-333 ;  as  a  taxing  body, 

338 
Copyhold  tenure,  185  and  notes 

I,  2 

Coroners,  147,  148;  origin  and 
early  history  of ,  188—190,313- 
315  and  note  i 

Cotars,  47 

Council,  king's,  102  and  note  2, 
1 66,  note  2;  jurisdiction  of, 
201-212;  legislation  of,  235, 
236;  origin  and  early  history 
of,  Pt.  III.,  §  II.,  2;  328  and 
note  i,  387,  388 

Counties  palatine,  95,  96 

County  court,  see  Shire 

Creation    of    peers,    300,    302- 

3°4 

Curia  Regis,  95,  102-104;  Pt. 
III.,  §  1.,  i,  passim;  200,  201. 
222;  as  source  of  the  Council, 
285-287 ;  as  source  of  House  of 
Lords,  298-302 ;  new  elements 
added  to,  317-322;  time  of 
meeting,  379 

Customary,    Court,     182,     184- 

187 
•  Custom*  duties,  360,  363 


Index 


405 


Danegeld,  56,  57,  97,  104,  105, 

108,  109  and  note  i 
Danelaw,  18,  19,  52 
Danes,   effect   of   invasions   of, 

49;  a  cause  of  conquest  of ,  62; 

effect  of,  upon  the  church,  68, 

69 

De  la  Marl,  case  of,  394,  395 
Despensers,  277,  356 
Dioceses,  creation  of,  by  Arch- 
bishop Theodore,  64;  number 

of,  in  early  times,  65 
Dispensing  power  of  the  King, 

373,  374,  386 
Dissolution  of  Parliament,  379, 

380 
Distraint   of    knighthood,    191, 

192,  343,  363,  note  i 
Domesday  survey,  101,  102  and 

note  i,  105,  140 
Dunstan,  69,  117 


F. 


Ealdorman,  in  the  shire  court, 
21 ;  becomes  local  noble,  29 
and  note  i ;  member  of  witan, 
58,  loses  official  character, 

61,  62:  attends  ecclesiastical 
councils,  66 

Earls,  origin  of,  29  and  note  i; 
great  families  of,  59,  62;  leave 
shire  court  and  change  in 
character,  91 

Ecclesiastical  councils,  66,  113; 
general  character  of,  after 
Conquest,  116  and  note  i 

Ecclesiastical  courts,  67;  sepa- 
rated from  lay  courts,  116,117; 
relationstolaycourts.Pt.  III., 

II..S 

Edgar,  51,  61,  62 

Edward  the  Confessor,  57,  60, 

62,  92,  96,  100,  105 
Edward  the  Elder,  33 
Edward  I.,  160,  163,  164,  178- 

180,  192,  193,  208,  228-231, 
235-237,  259,  note  i,  266, 
269-276,  289,  note  i,  301, 
note  i,  321,  326-331,  334, 
360,  361 


Edward  II.,  192,  193,  203,  211, 
259,  note  i,  276-278,  302, 
346,  355,  356, 400 

Edward  III.,  161,  192,  212,  227, 
251,  291,  292,  294,  301,  302, 
3°5,  348,  356,  357,  364,  371- 
373,  378,  394 

Edward  IV.,  194,  195,  219,  295, 

„  384,  393 

Egbert,  52 

Election,  of  kings,  51,  52;  of 
coroners,  193;  of  post-Con- 
quest kings,  259  and  note 
i ;  of  juries,  314—317 ;  of  mem- 
bers of  Parliament,  Pt.  III., 

§m.,6 

Elizabeth,  232,  296,  397 

Enclosures,  185,  note  2 

Eorls,  17 

Equity,  129  and  note  2;  crimi- 
nal, 204,  in  Chancery,  213- 
219,  234 

Ethelbert  ol  Kent,  53,  60 

Ethelred  II.,  56.  62,  145,  note 
i 

Exchequer,  125  and  note  2,  161- 
164,  166,  287 


Feudal  jurisdiction,  in  Nor- 
mandy, 76,  77;  origin  of,  93, 
94;  in  England  after  Conquest, 

94,  95,  I77~I79,  271,  272 

Feudalism,  Anglo-Saxon,  Pt.I., 
§  II.,  4;  62;  continental,  74- 
75;  continental  brought  into 
England,  85—90;  as  the  source 
ot  constitutional  government, 
Pt.  III.,  §  II.,  i 

Fines,  in  Anglo-Saxon  courts, 
27,  28 

Firma  burgi,  37,  97 

Folkland,  43  and  note  i 

Franchise,  see  Election 

Frankpledge,  168-170;  view  of, 
given  to  some  boroughs,  177 

Freedom    of    speech,    382-384, 

391,  394-399 

Freeholders,  83—85;  as  jurors, 
156;  part  of  a  middle  class, 

3°7 

Friars,  as  beneficiary  holders  of 
property,  215-217 


4o6 


Index 


Glanville,  223,  224 
Grand  Assize,  see  Assize 
Grand  jury,    136—138,    144—149 


H 


Hamlet,     Anglo-Saxon     settle- 
ment in  west  of  England,  13 
and  note  2,   14;  inclusion  in 
parishes,  66 
Harold,  62,  100,  114 
Haxey,  case  of,  395,  396 
Henry   I.,   78,   79,   92,   97,    103, 
note  i,  107,  116,  note   i,  125, 
127,    130,    131,    147,   note   2, 
163,   167-170,   188,  241,  256, 
259,  note  i,  263,  299 
Henry   II.,    103,    107,    108  and 
note  2,  109,  note  i,  131;  Pt. 
III.,  §  I.,   i,  2,  passim;  222- 
225;  Pt.  III.,  §  I.,  5,  passim; 
257     2S9.   note    i,    266,   312, 

3i3.  358,  359 
Henry   III.,    109,   note    i,    148, 

160,  163,  165,  172,  174,  206, 

228,   236,   259,  note   i,   266- 

270,  286,  300,  319 
Henry  IV.,  281,  291,  294,  296, 

TT349,387.  388,  392,395 

Henry  V.,  349 

Herfty  VI.,  292,  294,  296,  297, 
304,  350 

Henry  VII.,  251,  282,  296,  401 

Henry  VIII.,  219,  note  i,  232, 
252,  296 

Heptarchy,  52,  66 

Hide,  87,  105  and  note  i,  109, 
note  i 

Hundred,  6;  and  hundred  court, 
Pt.  I.,  §  II.,  2;  grants  of 
bookland  in,  44,  45;  hundred 
court  after  Conquest,  Pt.  II., 
§  II.,  2;  in  Henry  I.'s  reign, 
167-170;  later  history  of,  174 
-176;  ecclesiastical  cases  re- 
moved from,  239;  relations  to 
boroughs,  352 


Impeachment,    202,    279,    293, 
3?6,  377  and  note  i,  388-390 


Incidents,  feudal,  106  and  note 

2,  107 
Ini,  51,  60 

Inns  of  Court,  227-230 
Inquest  of  Sheriffs,  187,  317 
Inquisitio,  140-144,  312 
Interpreter,  Cowell's,  285,  note  r 
Investiture  contest,  113,  note  2, 

T   "5 

Itinerant  justices,  125-128,  158- 

161,   167,   168,   170,   195   and 
note  2 


John,  108,  149,  259  (and  note  i) 
—266,  270,  332—334 

Judges,  freemen  as,  21,  141,  142; 
of  common-law  courts  oppose 
new  law,  206-209;  hostile  to 
Chancery,  214;  limitations  of, 
226;  intimidated  by  Richard 
II.,  279,  280;  members  of 
Council,  288;  royal  control 
over,  374 

Jury,  judicial,  132,  136—138; 
origin  and  early  history,  140- 
157;  used  by  itinerant  justices, 
1 60;  in  manor  courts,  181; 
used  by  justices  of  the  peace, 
196;  corruption  of,  203,  204; 
its  service  to  law,  226,  227; 
non-judicial,  312-317;  as  ori- 
gin of  House  of  Commons, 
3I7~322,  324,  340 

Justices  of  the  peace,  161,  175; 
origin  and  early  history  of, 
194-199 

Jutes,  9,  note  a 


Kin,  23;  as  compurgators,  25 
and  note  i ;  responsibility 
of,  4  r ;  leaders  of,  as  primitive 
kings,  50  and  note  2 

King,  Anglo-Saxon,  6;  judicial 
matters  carried  before,  20, 
2 1 ;  relations  to  local  courts, 
27,  28;  his  peace,  30,  31,  392; 
his  peace  in  the  burhs,  33 ; 
boroughs  on  his  domain,  35; 
revenue  from  boroughs,  36, 
37;  uses  commendation,  41, 


Index 


40? 


King  (Continued) 

42;  grants  bookland,  43,  44, 
61;  Pt.  I.,  §  III.,  i;  relations 
with  witan,  59-61;  attends 
ecclesiastical  councils,  66;  re- 
lations to  post-Conquest  feu- 
dalism, 85-90,  passim;  effect 
of  Conquest  upon,  Pt.  II., 
§  II.,  4;  revenue  of,  after  Con- 
quest, Pt.  II.,  §  II.,  5;  rela- 
tions to  church  after  Conquest, 
Pt.  II.,  §  II.,  6,  passim;  de- 
velopment of  his  courts,  Pt. 
III.,  §  I.,  i,  2,  passim;  be- 
comes a  limited  monarch, 
Pt.  I.,  §  II.,  i;  relations  to 
Council  and  Parliament,  294- 
296;  shares  in  forming  the 
House  of  Lords,  Pt.  III.,  § 
III.,  i ;  helps  to  make  a  middle 
class,  308—310;  Parliament 
gains  powers  at  expense  of, 
Pt.  III.,  §  III.,  7;  relations 
with  Parliament  defined  and 
adjusted,  Pt.  III.,  §  III.,  8 

King's  Bench,  Court  of,  164-166, 
288 

Knights,  in  post-Conquest  feu- 
dalism, 86-88,  107;  com- 
missions entrusted  to,  159; 
general  local  importance  of, 
188-192,  198;  as  forming  a 
middle  class  310-311;  local 
activities  of,  3 1 2-3 1 7 ;  elected 
to  central  assembly,  320,  322; 
in  primitive  Parliament  335- 
337  and  note  i;  join  the  bur- 
gesses in  Parliament,  339, 
340;  how  elected  to  Parlia- 
ment, 343-35° 


Lanfranc,  m,  114-116,  118 
Langton,  Stephen,  114,  note  3 
Law,  Anglo-Saxon,  22,  23,  28,  60; 
administered  in  king  s  court, 
129    and    note    2;    made    by 
Henry  II.,    131,    132;   limita- 
tions set  to  growth  of,   206; 
see  Common  law  and  Statute 
law;     relation    of     kings    to, 
268 
Lawyers,  206,  »»3,  aa8,  343 


Lay  patronage,  118,  119 

Leet,  Court,  180 

Legislation,  of  the  witan,  60; 
of  the  Curia  Regis,  103,  365, 
366;  of  church  councils,  116; 
of  Edward  I.,  179,  180,  271- 
273;  slight  in  early  Parlia- 
ment, 208  and  note  2 ;  of 
Henry  II.,  222,  223;  a  new 
form  of,  236,  366,  367;  of  the 
Council,  288;  origin  of,  in 
Parliament,  365-374 

Letters  patent,  creation  of  peers 

by,  3°3.  3°4 

Livery  and  maintenance,  203, 
347,  348,  note  i,  399,  400 

Loans,  forced,  384 

London,  Roman,  8;  Henry  I.'s 
charter  to,  97,  98 

Lords,  House  of,  jurisdiction 
of,  20 1-203;  origin  of,  Pt.  III., 
§  III.,  i;  309,  331;  attempts 
to  control  Commons,  348, 
349;  its  share  in  impeach- 
ment, 377 

Lords  Ordainers,  276,  277 

M 

Magna  Carta,  art.  seventeen, 
165;  of  1217  contains  regu- 
lation touching  shire  court, 
172;  art.  twenty-four,  188; 
heads  the  statute  book,  235 
and  note  2;  its  character,  236; 
causes  of,  260-263;  funda- 
mental principles  of,  263-266; 
later  editions  and  confirma- 
tions, 266-275,  article  four- 
teen, 300,  301;  articles  eigh- 
teen and  forty-eight,  315; 
relation  to  Confirmatio,  362, 
to  "articles  of  the  barons," 
368 

Maltote,  360,  364,  365  and  note  2 
Manor,  38;  see  Feudalism,  Anglo- 
Saxon;  82,  83;  as  tithing,  169, 

i?5 
Manorial     jurisdiction,     38;     in 

Normandy,  76;  origin  of,  93; 

in  England  after  Conquest,  94; 

jury  in,  156,  175,  179 
Marriage,  a  feudal  incident,  icf 

and  note  a 


4o8 


Index 


Mercenaries,  hired  by  scutage, 

107,  108 
Merchet,  82,  83 
Militia,  87,  88 
Ministerial    responsibility,    371, 

3?6,  377,  387,  388,  390 
Model    Parliament,    326,    329— 

331, 357 
Monasticism,  Anglo-Saxon,  67- 

69;  after  the  Conquest,   IT 8, 

119 

Mortmain,  Statute  of,  216,  217 
Movables,  tax  on,  313,  359 


N 


Nationality,  initiated  by  early 
church,  66,  67;  consciousness 
of,  in  thirteenth  century,  266, 
267 

Normandy,  institutions  of,  in 
nth  century,  Pt.  II.,  §  I. .rela- 
tions to  papacy  in  nth  cen- 
tury, IIO-II2 


O 


Oath,  fore-oath  and  in  rebuttal, 
23;  of  compurgators  and  wit- 
nesses, 24,  25;  of  Anglo-Saxon 
kings  upon  accession,  55  and 
note  2,  100;  the  councillor's, 
287,  288 

Oath-helpers,  see  Compurgators 

Offa,  60 

Ordainers,  Lords,  276,  277 

Ordeal,  in  Anglo-Saxon  pro- 
cedure, 26,  27  and  note  i; 
superseded  by  jury,  146—149, 
'S3 


Palatinates,  95,  96 

Papacy,  in  nth  century,   109- 

iii 

Pardoning  power,  373,  374,  386 

Parishes,  origin  of,  65,  66 

Parliament,    attempts   to   limit 

jurisdiction    of    the    Council, 

204;  limited  legislation  of,  in 

r  arly  times,  208  and  note  2, 

23S     337:    controls   group   in 

the  Council,  279;  attacked  by 


Richard  II.,  280;  relations  to 
early  Council,  289  (and  note 
i)-294;  the  making  of,  Pt. 
III.,  §  III. ;  origin  of  the  name, 
320,  321,  335,  note  i 

Peasant  revolt,   347 

Peers,  302—306,  309 

Peine  forte  et  dure,  150,  151 

Penitential  system,  67 

Peter's  Pence,  112 

Petitions,  received  by  the  Coun- 
cil, 288,  290;  as  origin  of  Par- 
liament's initiative  in  legisla- 
tion, 368  (and  note  i)-37o,  374 

Petty  Sessions,   196,  197 

Pleas  of  the  crown,  147,  note  2, 
165,  188,  191 

Pope,  slight  relation  of,  to  Anglo- 
Saxon  church,  66;  his  relations 
with  William  i.,  111-113; 
prohibits  the  ordeal,  149;  re- 
lations with  Edward  I.,  274, 

275 
Praemunientes  clause,  331,  and 

note  i,  395 

Prerogative,  royal,  283-285,  395 
F  iests,  effect  of  Conquest  upon, 

117-119 
Primogeniture,  218,  note  2,  259, 

note  i,  281,  304,  309, 310 
Privileges    of    Parliament,    390 

(and  note  i)— 399 
Privy  Council,  296,  297 
Provisions  of  Oxford,  191,  207, 

269,   368 
Purveyance,  56,  363,  note  i 

Q 

Quarter  Sessions,  196—198 
R 

Ranulf  Flambard,  124,  255 
Redress  of  grievances,  369  and 

note  i,  381 

Relief,  feudal,  106  and  note  2 
Representation,  in  local  juries. 
312-317;  of  counties  in  a  cen- 
tral assembly,  Pt.  III.,  §  III., 
3;  of  boroughs,  324-326;  of 
counties  and  boroughs  in 
primitive  Parliament,  326- 
331;  of  clergy,  331-335 


Index 


409 


Revenue  of  the  crown,  from 
local  courts,  27,  54,  note  i; 
from  boroughs,  36,  37;  in 
general  in  Anglo-Saxon  period, 
56,  57;  after  the  Conquest, 
Pt.  II.,  §  II.,  5;  from  sale  of 
writs,  139 

Richard  I.,  163,  179,  188,  257- 
259,  note  i,  359 

Richard  II.,  198,  227,  278-281, 
290,  292,  293,  296,  302,  347, 

348,  357,  373.  38°,  38l«  384, 
387,  388,  395 

Richard  III.,  282,  295,  385, 
note  i 

Roger  of  Salisbury,  125 

Roman,  influence  upon  early 
Britain,  7-9;  cities  in  Britain, 
32;  influence  upon  Anglo- 
Saxon  central  government, 
53,  54;  influence  upon  post- 
Conquest  kingship,  101;  law, 
influence  of,  211-513,  223— 
225, 227, 229, 230 


St.  Albans,  Council  of,  317,  318 
Saladin  Tithe,  313,  359 
Salisbury  oath,  89,  90,  253 
Saxons,    relations    with    Angles 
in  conquest  of  Britain,  9  and 
note  2 
Scutage,     107,     108,    258,    260, 

263,  363 

Sheriff,  6;  in  shire  court,  21; 
origin  and  importance  in  An- 
glo-Saxon period,  29,  30; 
•  becomes  chief  official  in  shire 
court,  91,  1 68;  his  abuses  in 
local  courts,  92 ;  limited  by 
itinerant'  justice,  127;  his 
tourn,  137;  corrupts  juries, 
157,  note  i;  accounts  to  ex- 
chequer, 162;  origin  of  his 
tourn,  170,  171;  distrust  of, 
187;  later  judicial  powers, 
1 88,  189;  decreasing  powers 
of,  192-196;  choice  of  non- 
judicial  juries  taken  from, 
314-317;  his  abuses  as  cause 
of  early  representation  in 
Parliament,  341  and  note  i; 
excluded  from  Parliament, 


343;  his  share  in  elections  to 
Parliament,  346  and  note  i, 
350-354;  Commons  report 
shortcomings  of,  377 

Ship-money  385 

Shire,  6;  and  shire  court,  Pt.  I., 
§  II.,  2;  maintains  fighters  in 
burhs,  33;  shire  court  held  in 
boroughs,  33;  shire  court  aftef 
Conquest,  Pt.  II.,  §  II.,  2; 
itinerant  justices  in,  128;  in 
Henry  I.'s  reign,  167-170; 
later  history  of,  171-174; 
elects  juries,  315,  316;  repre- 
sented in  a  central  assembly, 
Pt.  III.,  §  III.,  3;  composition 
of  full  shire  court  in  thirteenth 
century,  324  and  note  2 ; 
elects  representatives  to  Par- 
liament, 345,  346,  348 

Simon  de  Montfort,  269,  322, 
324-326,  334 

Slaves,  10,  13,  14,  16,  17,  38,  46, 
47;  after  the  Conquest,  80- 
82 

Socage,  free,  36,  83  and  note  i, 
84-86 

Sokemen,  48,  80 

Speaker  of  House  of  Commons, 
380,  381,  391,  392,  394 

Star  Chamber,  Court  of,  204, 
note  2;  219,  note  2 

Statute  law,  221,  234,  236,  237, 
370-372 

Statute  of  De  Mercatoribus 
(1283),  328,  367;  Gloucester 
(1278),  173,  175,  182,  271; 
Maintenance  and  Liveries 
(1390),  348,  note  i;  Marl- 
borough  (1268),  192,  236; 
Merton  (1236),  173,  236; 
Mortmain  (1279),  216,  217, 
236,  272;  Quia  Emptores 

(1290),      237,      272,     273,      328, 

367;  Uses  (1535),  219,  note  i; 

Westminster  II.  (1285),  160, 

207,  236,  237,  272;  Winchester 

(1285),  192 
Stephen, 188, 242-244,  256,  259, 

note  i,  303 
Stuarts,  283,  285,  note  i    295, 

384-386,401 

Succession  to  the  crown    51,  52, 
I       259,  note  i 


Index 


Suitors  of  locai  courts,  in  Anglo- 
Saxon  times,  21,  22:  after  the 
Conquest,  90,  91;  decrease  m 
numbers  in  later  times,  173, 

345 
Suspending  power  of  the  king, 

373.  374,  386 


Tallage,  97, 108  and  note  2,  329, 

363 

Taxation,  Anglo-Saxon,  56,  57; 
in  feudal  period,  Pt.  II.,  §  II., 
5; 259, 260, 264,  287,  313,  315, 
316;  of  clergy,  331-333,  337, 
338;  consent  to,  by  early 
representatives  in  Parlia- 
ment, 340,  341,  note  i; 
national,  origin  of,  358-360; 
resistance  to,  361;  Parlia- 
ment gains  control  of,  361— 
365;  relation  to  parliament- 
ary legislation,  369  and  note 
i;  unlawful  methods  of,  384, 

385 

Tenth   and   fifteenth,   329,   360 

Thegns,  value  of  their  oath,  25; 
origin  of,  45,  46 

Theodore,  Archbishop  of  Can- 
terbury, 64,  65 

Thorpe's  case,  3 93  and  note  2, 398 

Tithing,  168,  169 

Tolls,  97 

Tourn,  sheriff's  137;  origin  of, 
170,  171;  inadequacy  of,  187; 
decline  of,  192-196 

Township,  early  Anglo-Saxon, 
12, 13  and  note  2,  14,  17,  note 
3  as  parish,  65;  as  tithing,  169 

Treason,  251,  284,  note  2,  377, 
note  i,  393,  395 

Treasurer,  163,  164,  292 

Tudors,  204,  233,  237,  282,  283, 
296,297,381,384,389,400,401 

Tunnage  and  poundage,  360 

U 

Universities,   227,   229 
Uses,  215-219;  Statute  of,  219, 
note  i 


Veto  power,  372 

Villa,  Roman,  8,  14 

Villeins,  47  and  note  2,  48;  after 
the  Conquest,  80-85;  m  tne 
manor  courts,  181;  emanci- 
pation of,  184-186,  347,  348 

W 

Wager  of  battle,  lacking  in 
Anglo-Saxon  system,  27  and 
notes  i,  2;  continuance  of, 
149,  note  i,  150  and  note  2, 

J53 
Wagers,  of  justices  of  the  peace, 

198;  of  councillors,  290,  291; 

paid    to    representatives    in 

Parliament,  3-46 
Wapentake,   17,  18 
Wardship,  106  and  note  2 
Wer,  27 
William  I.,   57,   Pt.   II.,    §    II., 

passim;   140,    142,    143,   239— 

241,  253-255,  259,  note  i,  299 
William  II.,  78,  79,  89,  92,  106, 

107,  124,  255,  256,  259,  note 

1,263 
Witan,  6,   55;  general  account 

of,  Pt.  I.,  §  III.,  2 
Wite,  27,  44 

Witnesses,  in  Anglo-Saxon  pro- 
cedure, 25,  26,  141,  142; 

modern,   origin   of,    155,    156 
Writs,    128-130;  of  right,    135; 

pr&cipe,  135,  136;  in  general, 

138-140;  creation  of  limited, 

206 


Year  Books,  230,  231 

York,  becomes  seat  of  arch 
bishop,  65;  effect  of  Danish 
invasions  upon,  68,  114;  re 
lations  of  archbishop  of,  with 
archbishop  of  Canterbury 
settled  after  Conquest,  114, 
and  note  3;  House  of,  on  the 
throne,  282,  295,  380,  400 

Young's  case,  398 


Jl  Selection  from  the 
Catalogue  of 

G.  P.  PUTNAM'S   SONS 


Complete   Catalogues   sent 
on  application 


By  James  Albert  Woodburn 

(Professor  of  American  History  and  Politics,  Indiana  University) 

The  American  Republic  and  Its  Government. 

An  Analysis  of  the  Government  of  the  United 
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Political  Parties  and  Party  Problems  in  the 
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of  American  political  parties,  a  lucid  explanation  of  the  work- 
ings  of  party  machinery,  and  a  strong  statement  of  the  moral 
evils  now  debasing  our  political  life,  and  the  remedies  which 
an  awakened  public  conscience  may  apply.  A  thoroughly 
good  book  for  the  school  and  for  the  study."— Outlook* 

S*>nd  for  Descriptive  Circular 

G.  P-  PUTNAM'S  SONS 

NEW  YORK  LONDOV 


The  Principles 

off  the 

Administrative  Law 

off  th« 

United  States 

By 

FranK  J.   Good  now,  A.M.,   LL.D. 

Eaton  Professor  of  Administrative  Law  and  Municipal 
Science  in  Columbia  University 

Octavo 

Professor  Goodnow  sets  forth  the  principles  of 
law,  as  found  in  the  Constitution,  the  statutes  of 
the  legislature,  and  the  decisions  of  the  courts 
which  govern  the  organization  and  actions  of 
anthorities  having  the  duty  of  executing  the  law, 
and  provide  remedies  for  the  individual  when  such 
officers  have  violated  his  rights. 

The  book  is  intended  not  for  the  practising 
lawyer  but  for  the  student  of  American  Institu- 
tions. Therefore  no  attention  has  been  given  to 
technical  legal  questions  except  where  such  con- 
.  sideration  has  been  deemed  indispensable  to  a  cor- 
rect understanding  of  American  Institutions. 

G.  P.  PUTNAM'S  SONS     c 

New  York  London 


"  The  best  summary  at  present  available  of  iJu 
political  history  of  the  Jnitsd  States." 

FRANK  H.  HODDER,  Professor  of  American  History  in  the 
University  of  Kansas. 


American  Political  History 

1763-1876 

By  Alexander  Johnston 

Edited  and  Supplemented  by 

James  Albert  Woodburn 

Professor  of   History  and   Political  Science,   Indiana    Uni- 
versity; Author  of  "The  American  Republic," 
"  Political  Parties  and  Party  Problems 
in  the  United  States,"  etc. 

/*  two  parts,  each  complete  in  itself  and  indexed ^  Oeatvo. 


I.    The  Revolution,  the  Constitution,  and  the  Growth 
of  Nationality.    1763-1832. 

a.    The  Slavery  Controversy,  Secession,  Civil  War, 
and  Reconstruction.     1820-1876. 

These  volumes  present  the  principal  features  in  the  political  history 
of  the  United  States  from  the  opening  of  the  American  Revolution  to 
the  close  of  the  era  of  the  Reconstruction.  They  give  in  more  con- 
venient  form  the  series  of  articles  on  "American  Political  History  "  con- 
tributed to  Lalor's  "Cyclopedia  of  Political  Science,  Political  Economy, 
and  Political  History,"  by  the  late  Professor  Alexander  Johnston. 

M  These  essays,  covering  the  whole  field  of  the  political  history  of  the 
United  States,  have  a  continuity  and  unity  of  purpose ;  introduced, 
urranged  and  supplemented  as  they  have  been  by  Professor  Woodburn 
(who  contributes  a  very  necessary  chapter  on  the  Monroe  Doctrine)  they 

§  resent  a  complete  and  well-balanced  history  of  the  politics  of  the  United 
tales."— Hartford  Courant. 


*    G.  P.  PUTNAM'S  SONS 
New  York  London 


The   Government   of 
England 

National,  Local,  Imperial 

By 
D.  D.  Wallace,  Ph.D. 

Author  of  "The  Life  of  Henry  Laurens, "  etc. 


The  English  Government  as  it  is,  without 
a  distracting  account  of  how  it  came  to  be 
what  it  is.  The  common  habit  of  first  describ- 
ing the  government  as  it  is  supposed  to  be  in 
theory  and  then  explaining  that  it  is  not  really 
this,  is  avoided.  The  author  has  also  kept  in 
mind  the  resemblances  and  contrasts  between 
the  government  of  England  and  that  of  our 
own  country. 

G.  P.  Putnam's  Sons 

New  York  London 


UNIVERSITY  OF  CALIFORNIA 

Santa  Barbara  College  Library 
Santa  Barbara,  California 

Return  to  desk  from  which  borrowed. 
This  book  is  DUE  on  the  last  date  stamped  below. 


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The  Making  of  ^  r 
the  English   — 
Constitution 


